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While it may seem that sexual harassment in the workplace should be a relic of the past, observers say the problem persists.
Greater informality in today's workplace, widespread use of social media and basic human nature all contribute to keeping sexual harassment a major issue in the workplace.
Experts say employers should use a strong policy, training and an accessible complaint program to discourage and address sexual harassment (see related story).
The issue has gained fresh attention with Herman Cain's decision to suspend his presidential campaign amid allegations that included disclosure of two confidential agreements that settled sexual harassment charges while he was president of the Washington-based National Restaurant Assn. Observers say these claims generally are settled with confidential agreements.
While the number of sexual harassment complaints filed with the U.S. Equal Employment Opportunity Commission fell 7.7% in fiscal 2010 vs. the previous year, sexual harassment remains a significant problem. According to the EEOC, there were 11,717 sexual harassment charges filed in fiscal 2010.
But according to an April 2010 survey by the Alexandria, Va.-based Society for Human Resource Management, 64% of organizations received at least one sexual harassment claim in the previous two years, with 57% saying there had been no change in the number and 25% reporting an increase.
“You would think it would be old news, but it isn't, and it keeps coming up,” said Paul E. Starkman, an employment defense attorney and partner with law firm Pedersen & Houpt in Chicago, who estimates that sexual harassment accounts for “a good 20% to 25% of my practice.”
“It continues to be one of the most frequently asserted employment claims that we get in the workplace,” said Gregg M. Lemley, a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in St. Louis.
It is a problem that extends “all the way up to the C-suite,” said Nigel F. Telman, a partner with law firm Proskauer Rose L.L.P. in Chicago.
However, the type of sexual harassment has changed over the past 20 or 30 years, said Joseph R. Harkins, a partner with Littler Mendelson P.C. in Washington.
Where previously “it was more common to see quid pro quo,” where women were asked for “sexual favors in exchange for some employment benefit, now I think the vast majority are hostile environment theories,” Mr. Harkins said.
Several factors explain why sexual harassment remains a workplace issue.
The harassers “are not thinking with their brains, they're thinking with other parts of their bodies,” said Mr. Starkman. Particularly on the executive level, this “has a lot to do with arrogance and people not thinking that the rules apply to them.”
While the means may be different, with today's use of text messages, emails, Facebook posts and tweets, “As long as we have males and females in the workplace,” this sort of activity will continue, Mr. Lemley said.
“We spend so much of our lives in the workplace,” which has “become less and less formal,” like much of society, said Diana L. Hoover, a partner with Hoover Kernel L.L.P. in Houston.
“In the old days, there was delineation between when you go to work and what you do outside of work,” Mr. Telman said. At work, “you conducted yourself in a certain way.” But with longer work days and more casual dress codes, particularly among young people, there has been a “blurring of the lines between what happens at work and what happens in your social life,” he said.
The proliferation of email and other social media has contributed to the issue, said Mr. Telman. People feel more comfortable sending inappropriate material via an email or text message than they would in person, he said.
“Now you can harass (someone) without seeing them or touching” them, he said. “You can create a sexually hostile work environment via email from the floor below or the office next door.”
There also are instances where people “may not intend for something to be harassment, but it may very well be perceived that way; and sometimes people just don't think,” said Martha J. Zackin, of counsel at Boston-based Mintz Levin Cohn Ferris Glovsky & Popeo P.C. in Boston.
Linda E. Shostak, a partner with Morrison Foerster L.L.P. in San Francisco, said, “There are some people who don't get it and think (sexual harassment) doesn't apply to them, meaning what they're doing is friendly, consensual; and it never occurs to them it wouldn't be welcome.” It is “certainly a personality type you still find in the workplace.”
A strong policy, training, a readily accessible complaint procedure, responsive investigations and a corporate culture that discourages sexual harassment are factors that will help employers address this problem, experts say.