A Hostile Work Environment - By a Woman's Standards

Sexual Harassment in it's simplest quid pro quo form should be pretty easy for most managers to understand. Over time however the courts have continued to expand the Harassment definition to include that of Hostile Work Environment which managers may feel is more subjective in its definition. Combine that with the fact that the "Reasonable Person Standard" has a partner measurement called the "Reasonable Woman Standard" and identifying Harassment in the Workplace has become quite muddy.

According to an article by Christopher Cornell in Human Resource Executive magazine, a recent ruling by the 9th Circuit Court may muddy the waters even more. The article includes the following excerpts from the court's rulings.

"There is no legal requirement that hostile acts be overtly sex- or gender-specific in content," Judge Alfred T. Goodwin wrote for the court.

Goodwin said the lower court should have applied a standard, devised in an earlier case, to determine whether a hypothetical "reasonable woman" would find the behavior discriminatory. The "reasonable woman" standard requires the court to take into account both qualitative differences in the treatment of subordinates of different sexes as well as differences in the objective effects of the behavior. This standard, according to the court, ignores the intent of the person committing the offense and focuses on the effect of the behavior."

An attorney quoted in the article offered this advice to employers:

". . .This decision suggests employers should:

• Take firm disciplinary action against abusive workplace behavior and document the disciplinary action. Termination of repeat offenders may be necessary to avoid potential liability.
  
• Adopt workplace policies that prohibit abusive, bullying behavior and enforce the policies.
  
• Make sure that discrimination-prevention training includes the concept that abusive conduct that is not gender-specific could be considered gender-based discrimination, if the conduct has a subjectively and objectively more adverse effect on women."

For their own protection and the protection of their bottom-line, employers should heed the advice regarding policies and training. Many companies have gone the route of seeking out the quickest, least expensive means of delivering so-called Sexual Harassment training without scrutinizing the content and means of delivery. Simply offering a training program, regardless of quality, for the sake of establishing a potential affirmative defense in the event of a harassment claim may backfire. Other recent rulings have indicated that the courts may begin to more broadly scrutinize the legitimacy and actual effectiveness of training efforts being touted as an affirmative defense.

When evaluating your options regarding Harassment training keep the following statistic in mind:

The average cost to defend a sexual harassment lawsuit is $150,000 per plaintiff, WIN OR LOSE.

To read Cornell's complete article from Human Resource Executive click here: Court:Nonsexual Abusive Behavior May Be Sexual Harassment

Posted by Denise Knutson, Senior Consultant, The H.S. Group