Thursday, October 29, 1998

Small businesses need plan for dealing with sexual harassment

By MARCIA HEROUX POUNDS

Sun-Sentinel, South Florida

In a now landmark Supreme Court case, former Boca Raton, Fla., lifeguards Beth Ann Faragher and Nancy Ewanchew said two supervisors groped them and made offensive comments on their job. Faragher said one supervisor told her: "Date me or clean the toilets for a year."

As a small-business owner or manager, what would you do if this happened at your workplace?

You better have a plan because small businesses are most vulnerable, says Elizabeth J. du Fresne, labor and employment lawyer for Steel Hector Davis in Miami. She recently presented a paper on the subject to the Equal Opportunity Employment technical Assistance Program.

The two former lifeguards' lawsuit changed the way employers must institute and communicate their policies against harassment and discrimination.

In its review of Faragher v. City of Boca Raton, the Supreme Court in June made what is considered a clear edict to employers:

Avoid liability by instituting a thorough, well-communicated policy prohibiting sex harassment and a complaint procedure that's comfortable for employees to use.

The message is not just for large corporations with human resource departments. It applies to small business with as few as 15 employees, du Fresne said.

The Supreme Court ruled the city was liable for damages because Faragher's supervisor acted as an agent of the employer, and the city had not exercised "reasonable care" to prevent or correct the sexually harassing behavior.

Small-business owners need to be alert to this case because they tend to make "the one-person decision to fire, transfer or demote," du Fresne said.

That kind of action against an employee should never be taken without a second manager - either a peer or a higher-level manager - being involved in the decision, she said.

A company's best defense against a lawsuit by an employee or the Equal Employment Opportunity Commission is that it has a no-harassment or discrimination policy, a grievance procedure and the company can show employees know about it and use it.

The Faragher case also is relevant to the many businesses that have remote locations throughout the state or country.

"Employers cannot simply wash their hands and say 'that happened in Melbourne.' They better know what happens," du Fresne said. "There has been some closing of eyes to the remote location. Faragher has made it so they can never do that again."

The Faragher decision may have concerned sexual harassment, but as a matter of law it will extend to any kind of harassment or discrimination, du Fresne said.

Overall, du Fresne stresses that employers must:

Have a written policy against harassment or discrimination.

Institute practices and procedures that support that policy.

Have a meaningful audit, compliance and monitoring program regarding sexual harassment and other discriminatory conduct.

Train managers and all employees to prevent sexual harassment and discrimination from occurring.

Have procedures that encourage employees to report violations.

Take every possible step to prevent retaliation of those who use company procedures.

Evaluate all negative employment actions - an undesirable transfer, demotion, a suspension, a waiver of pay or a termination - before decisions become final to root out violations before harm occurs.

This may even include a negative performance evaluation, du Fresne said. "Say the employee has been getting satisfactory for years and you give them below average. In the 11th circuit, that standing alone would not have constituted job action. According to Faragher, "that's questionable now," she said.

It can pay off in the long-run when a small business takes such steps and has an employment lawyer review them, du Fresne said. That puts the business owner in a stronger position when an employee fails to complain about harassment or discrimination internally.

"If a person walks out the door without using grievance procedures, they don't have a case," du Fresne said.

(Marcia H. Pounds is a business columnist for the Sun-Sentinel, South Florida. Call her at 561-243-6650 or e-mail her at marciabiz(at)aol.com)

(c) 1998, Sun-Sentinel, South Florida.

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