Sexual Harassment Cases Are Becoming More Complex

A lthough most companies have detailed policies against sexual harassment, employers often find themselves in a difficult pinch when it comes to defining, proving, and disciplining sexual harassment in the workplace. Thus, companies deal with complaints in vastly different ways. For example, retaliation against workers who complain about sexual harassment is an issue that had better be addressed since the Supreme Court has stepped up its concern.   “There are obviously laws against harassment, but defining exactly what that is is hard, and so is applying those laws to a particular set of facts and deciding what a company does about it,” said Ron Peppe, a vice president of the Association of Corporate Counsel in Washington, DC, an umbrella group for lawyers who work for in-house legal departments. “So it’s a gray area sometimes, because there are no hard-and-fast rules.”   Indeed, the sexual harassment policy at Caritas Christi Health Care, which has received reports from at least 10 women that its president allegedly sexually harassed them, appears straightforward. Its definition of harassment includes “sexually charged looks and gestures” and “unnecessary touching of an individual,” such as hugging, both of which are complaints made about Haddad. Its “progressive discipline policy” includes written warnings, suspensions, and termination.   Despite the explicit enumeration of acts that would be considered harassment, the  alleged harasser disputed that his behavior was sexual harassment, describing the gestures instead as innocent reflections of the culture in which he was raised.   “Sexual harassment is such a messy area,” said Jay Shepherd, a Boston lawyer who specializes in employment law and teaches sexual harassment training courses for employers.

“In many ways, it’s one of the most difficult areas of employment law because it’s always ‘he said, she said’ or ‘he said, he said.’ ”   Handling sexual harassment cases is complicated because they must be evaluated on a case-by-case basis, Shepherd and other employment lawyers said. Harassment complaints are often highly fact-specific and subjective and typically turn on the credibility of the  accused and the accuser, since there are frequently few, if any, witnesses.   In addition, perceptions of what is welcome or unwelcome behavior can change with time, particularly in cases in which workplace romances have soured. For that reason, some companies prohibit romantic relationships between co-workers, especially supervisors and subordinates, and consider failures to disclose even consensual relationships a firing offense.   A company’s internal culture can also be a factor, leading some employers to have different levels of tolerance for different types of behavior.   “What is culturally deemed acceptable varies by company,” said Julie L. Burke, a director in the employer’s resource group for Associated Industries of Massachusetts, the state’s largest business lobby. “So an all-male environment might be different than a male–female environment, or a white-collar environment might be different than a blue-collar environment.”   How an employer chooses to handle a complaint can depend on the severity of the conduct, the number of complaints, and whether there have been prior allegations involving the same person. When determining appropriate penalties, employers often consider the circumstances of the accused person’s career, such as whether he or she was hired recently or is a longtime employee and whether his or her performance has otherwise been exemplary. Employment lawyers advise employers to be consistent in their discipline, since companies can land in hot water when they treat some accused employees, such as top salespeople, differently than others.

1. Should the president of Caritas Christi Health Care be fired? Why?

 2. Why is the handling of sexual harassment cases considered complicated? 

3. Explain in your own words why consistency in handling sexual harassment claims is important.