Sexual Harassment: A Tale of Two Cases

03/07/07

Sexual harassment happens—sometimes even when an organization does all it can to prevent it.

But as the stories in this article show, how an organization responds to an allegation of harassment can mean the difference between a legal liability of $0 and a $10 million settlement.

Harassment: Intimidating, Hostile, OffensiveSexual harassment, a form of sex discrimination, violates Title VII of the Civil Rights Act of 1964. Among other things, the law prohibits unwelcome sexual advances and verbal or physical conduct of a sexual nature when such behavior “unreasonably” interferes with an employee’s work performance. It also prohibits such behavior when it creates an intimidating, hostile, or offensive working environment.

What’s more, says the EEOC,    “An employer is responsible for [employees’] acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.” [Emphasis added]

Case One: Dial Corporation
The Equal Employment Opportunity Commission alleged that over a multi-year period, employees at a Dial Corporation plant in Illinois harassed nearly one hundred female workers. According to the judge in the case, “Several women testified that they were subjected to physically invasive behavior by male employees. This alleged behavior ranged in severity from men touching women’s breasts and buttocks to an incident where a male coworker grabbed [an employee] by the crotch and jerked upward.” Men also allegedly exposed themselves to female coworkers, and employees were said to have displayed pornographic magazines, calendars, and sexual cartoons in the plant.

If true, these facts portray a classic case of hostile-environment sexual harassment. What did Dial do about it? In some cases, it disciplined workers. But, said the judge, “I have already concluded that the EEOC has presented sufficient evidence for a reasonable jury to find that Dial either knew or should have known of a plant-wide sexual harassment problem. I have also determined that there is little, if any, evidence demonstrating that Dial took steps to determine whether individual incidents, which occurred frequently and continuously, were indicative of a larger problem requiring a company-wide response.”

When this judge allowed the trial to go forward, and permitted the jury to calculate punitive damages for all the women involved, Dial threw in the towel and settled the case for $10 million.

A spokesman said the company “does not tolerate harassment of any kind.”

Case Two: ExxonMobil
Now look at ExxonMobil’s response in a case that involved just two instances of sexual graffiti. They involved a female employee who took the case to federal court.

ExxonMobil employees had authored offensive graffiti of a sexual nature that mentioned the plaintiff by name. In one instance, the graffiti appeared on a table in a break room. In another, the graffiti had been spray-painted on the wall. The woman alleged hostile-environment harassment and argued that ExxonMobil’s action were neither prompt nor adequate.

The table graffiti appeared on July 9, 2000. On July 10, according to court documents, the facility’s HR director:

1. Personally viewed the graffiti;
2. Took pictures of the graffiti so that he could investigate the handwriting;
3. Authorized the graffiti’s immediate removal;
4. Began interviewing employees and security guards to determine who could be a suspect;
5. Began interviewing employees who had been targeted as suspects;
6. Collected numerous writing samples from the suspects’ employee records and compared them with the graffiti;
7. Reviewed the plant’s security system surveillance tapes;
8. Reviewed trucking logs of outside contractors who were on the premises during the relevant period;
9. Attempted to identify a forensic handwriting expert;
10. Contacted headquarters seeking additional assistance;
11. Asked security to be more aware of potential problems at the plant.

After offensive graffiti appeared on a wall a month later, ExxonMobil called the local police, removed the graffiti, brought in a security expert from Exxon headquarters, started an investigation, held meetings in which plant managers “reiterated and demanded compliance with the sexual harassment policy,” and beefed up security significantly. Eleven days later, it identified the likely perpetrator and fired him after obtaining proof.

In affirming a lower court’s decision in favor of the company, the appeals court concluded, “ExxonMobil has demonstrated that it promptly investigated and took progressively more serious remedial action that not only ended harassment by specific employees, but was also reasonably calculated to demonstrate to all employees that its policy against sexual harassment would be enforced.”

Lesson? Act promptly and decisively when you learn of a possible incident of sexual harassment. You’ll keep the poison of harassment from spreading and, even if you end up in court like ExxonMobil, you can come out with only minor bruises and your good reputation intact.

G.Neil has a number of products designed to help you keep harassment at bay:
Harassment Prevention Program
Harassment Investigation Kit
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