The 1990s marked the start of a heightened awareness for sexual harassment claims in the United States. A multitude of high-stakes, high-profile cases headlined the news, and accusers like Anita Hill and Monica Lewinsky became household names. The number of reported cases of sexual harassment increased, new legal precedents were established, and both victim and aggressor stereotypes were thrown out the window.
Over the past two decades, most employers have reacted appropriately to create policies prohibiting harassment and to implement sensitivity training for both supervisors and employees. A new understanding of the adverse effects of sexual harassment has permeated our workplaces and become evident in popular culture with such TV comedies as “The Office.” This widespread awareness, however, hasn’t translated into a decline in the cost to businesses from harassment charges filed with the Equal Employment Opportunity Commission (EEOC).
And these are just the reported claims. Many, if not most, grievances of this nature are resolved privately and go unreported. The cost of these claims continues to burden employers of all sizes. In fact, the U.S. Department of Labor estimates that American businesses lose almost $1 billion annually from absenteeism, low morale, and new employee training replacement costs due to sexual harassment. (Moore & Bradley, 1997).
The high profile case involving Hewlett Packard and the resignation of CEO Mark Hurd following the investigation of alleged sexual harassment illustrates just how costly a claim can be — even if sexual harassment is not demonstrated. In a written statement put forth in August 2010, HP said:
Hurd’s decision [to resign] was made following an investigation by outside legal counsel and the General Counsel’s Office, overseen by the Board, of the facts and circumstances surrounding a claim of sexual harassment against Hurd and HP by a former contractor to HP. The investigation determined there was no violation of HP’s sexual harassment policy but did find violations of HP’s Standards of Business Conduct.
There are two main types of sexual harassment: Tangible Employment Actions (formerly quid pro quo), and Hostile Work Environments. Tangible Employment Actions include hiring, firing, failing to promote, reassigning to a position with significantly different responsibilities or making changes in benefits based on inappropriate relationships (whether realized or attempted) between supervisors and their subordinates. Employers have very few defenses to liability for this type of harassment by renegade supervisors.
A Hostile Work Environment is created when severe or pervasive conduct — either verbal or physical — that creates an abusive environment is unwelcome and occurs because of a protected class, such as gender. An employer can attempt to avoid liability for a hostile environment claim by proving both (1) that it exercised reasonable care to prevent and promptly correct the harassing behavior and (2) that the victim unreasonably failed to avail him/herself of the reporting mechanism made available by the employer.
According to HP’s legal counsel, the situation involving Hurd, (which included a former marketing assistant who was not employed by HP and improper expense reports charged to the company), did not constitute either type of sexual harassment. Nevertheless, the cost to Mark Hurd and HP (even beyond the private monetary settlement reached with the former marketing assistant) was very real.
To make matters worse, defense litigators will tell you that many jurors have a hypersense of fairness; they will try to return a verdict for an employee who is unfairly treated even when no law has been broken. This fact underscores the importance of paying close attention to reported claims of harassment, even if they do not rise to the level of legal violations.
Understanding sexual harassment behaviors is complex and is deeply rooted in psychology and sociology. Personal problems at home, job insecurity, office politics, or workplace bullying can create intimate and intense relationships where common interests and physical closeness start to blur boundaries. Sexual harassment may be an old term now, but the risk it presents in the workplace is ever present. It is just as important now as it was in the days of Anita Hill and Paula Jones for employers to remain vigilant with policy enforcement and training updates to protect themselves against claims, meritorious or not. Sexual harassment is alive and well, and the cost of a claim continues to be surprising.