@128 CHAP 5 旼컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� � SEXUAL HARASSMENT IN THE WORKPLACE � 읕컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� The Clarence Thomas-Anita Hill drama. which replaced after- noon soap operas and kept millions of glassy-eyed Americans glued to the small, glowing boxes in their living rooms for several days in the fall of 1991, has brought the issue of sexual harassment to a new and heightened level of aware- ness among the public. While sexual harassment as such is not mentioned anywhere in Title VII of the federal Civil Rights Act, the Equal Employment Opportunity Commission (EEOC) and the courts have long accepted such harassment as being illegal and discriminatory. In addition, many states have adopted specific laws banning sexual harassment. Because this is now such a highly topical issue, many em- ployment law experts expect an upsurge in litigation invol- ving sexual harassment claims, so it behooves you to take a fresh look at your firm's policies regarding this subject. For a deeper discussion of the federal sexual harassment law and steps you can take to protect your firm from being sued for failing to take proper steps to prevent such acts from occurring, see Chapter 5.8 of our companion book, STARTING AND OPERATING A BUSINESS IN @STATE. Employers need to be keenly aware their potential liability for sexual harassment in the workplace, another increasing- ly significant area of the anti-discrimination laws, under Title VII of the Civil Rights Act. While, as noted, the federal Civil Rights Act does not specifically refer to sexual harassment as a form of discrimination, the courts and the EEOC have long defined it as such. Under the body of law that has been built up, there are two types of sex- ual harassment under Title VII, as it has been interpreted over the years: . One is sexual harassment of the type where "tangible job benefits" are granted or withheld based on an employee's receptiveness to unwelcome requests or conduct: 旼컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� � EXAMPLE: A male supervisor tells a female � � employee to meet him at the swimming pool on � � his sumptuous estate on a Saturday afternoon � � to discuss a business contract. She refuses � � to meet him at his place, and later receives � � a bad rating from him for "bad attitude and � � unwillingness to work weekends," which costs � � her a raise or promotion. The female employee� � in such a case has been denied a "tangible job� � benefit" due to sexual harassment most likely.� 읕컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� . The other type is sexual harassment involving a hos- tile work environment; that is, a situation in which the work environment is oppressive and is hostile to members of one sex, where such conditions either un- reasonably interfere with the individual's work per- formance or create an intimidating, hostile, or offen- sive environment. This type of harassment may not have any economic effects on the complainant, and management or supervisory personnel may not be in- volved. Even so, the employer who allows such a con- dition to persist may still be liable if management was aware of the harassment by co-workers (or even by customers) and fails to take appropriate actions to remedy the situation. 旼컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� � WHAT TO DO? Merely having a firm policy that � � prohibits sexual harassment at your company � � won't automatically stop such activity or pro-� � tect the firm from liability if harassment oc-� � curs, but the absence of such a policy makes � � such conduct somewhat more likely to occur and� � will also tend to strengthen an employee's � � claim against you if your firm is sued for � � allowing such acts to occur. � � � � SUGGESTED APPROACH: Adopt a sexual harassment� � policy that not only prohibits such conduct, � � but which also sets up a grievance mechanism � � for employees who are victims of any such � � harassment and communicate this company policy� � strongly and clearly to your employees. � 읕컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� Note that, in addition to federal civil rights case law, the statutes of many states, or the regulations of many state civil rights commissions, now specifically prohibit sexual harassment in the workplace, and some of these laws go well beyond the protections afforded under federal law. @CODE: CA Also, the California Government Code (Section 12940(h)) expressly prohibits sexual harassment by employers and by others where the employer knows of the situation and fails to take immediate and appropriate action to correct it. Employers must take all reasonable steps to prevent sexual harassment from incurring, including verbal, visual and physical harassment, as well as unwanted sexual advances. @IF000CA]While you have no employees now, you will need to be highly @IF000CA]cognizant of these requirements, as a California employer, @IF000CA]if you do hire employees in the future for your business, @IF000CA]@NAME. @IF204CA]Since you have @EMP employees, these requirements are fully @IF204CA]applicable to @NAME. @CODE:OF @CODE: HI Also, the Hawaii State Civil Rights Commission interprets Hawaii's fair employment law to prohibit sexual harassment on the the same basis as the EEOC rules. (Hawaii AR Sec. 12-23-59(a)-(f).) @CODE:OF @CODE: NM Also, the New Mexico Human Rights Commission considers sex- ual harassment to constitute sexual discrimination under the New Mexico Human Rights Act. Harassment includes un- wanted or repeated physical or verbal action to pressure an individual for sexual activity, including sexual advan- ces, contact, verbal or nonverbal suggestions, innuendos or ridicule. (NM RR Sec. I.A.27 a.1.) @CODE:OF