Source: BOXOFFICE, March 2003

AVOIDING WORKPLACE LITIGATION
- Part III -
By David J. Bowman, Human Resources Expert

In my previous two essays for Boxoffice, I discussed how to avoid Workplace Violence litigation in theaters. Here, I'll discuss how to avoid another problem that can involve enormous consequential damage awards for theater owners: Sexual Harassment in the workplace.

The U.S. Supreme Court has set very specific ground rules about workplace Sexual Harassment prevention. It's now the law that all employers are liable for such acts - even if management didn't know about the incidents, or if victims didn't complain, or even if there were no adverse effects on jobs.

The Court has said that employers are liable for such harassment, unless they have "exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and unless the victim "unreasonably failed to take advantage of any protective or corrective opportunities."

Legal experts agree that this means every employer - to include every theater owner - must 1) develop a strict harassment prevention policy which is communicated effectively and often, 2) have a victim complaint procedure in place, and 3) offer on-going prevention training for all employees, from the top down. Additionally, harassed employees must be assured that supporting witnesses and documents can be presented without recourse, that investigation conclusions are accessible and that an appeal can be lodged without going outside the organization. Without these safeguards, theater owners, as well as managers/supervisors can sustain huge personal financial damages if sexually abusive behavior occurs and the victims sue.

Employee-to-employee Sexual Harassment has been a troublesome issue in the entertainment industry for many years. However, theater environments can have a double-edged sword - they can experience it in two ways: employee-to-employee and patron-to-employee. Owners often try to hire pleasant, appealing employees to enhance the theater-going experience. But often, it is these exact employees that are the targets for Sexual Harassment - from co-workers and/or patrons.

The Equal Employment Opportunities Commission (EEOC) defines Sexual Harassment as unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that interferes with an individual's work performance, or creates a hostile, intimidating work environment.

The U.S. Supreme Court has ruled that Sexual Harassment is a form of discrimination, and thus is a part of Title VII of the Civil Rights Act. In addition, Congress has amended the Act to allow plaintiffs jury trials in federal court, as well as punitive damages.

So, harassment in the workplace must stop, or there may be substantial financial consequences for employers. Also, depending on the circumstances, harassers now can be sued, as can their supervisors who don't respond to reports of harassment.

For example, in addition to many well-known cases in the entertainment industry, consider the extremely costly Mitsubishi Motors case. Here, 350 women and the EEOC sued Mitsubishi because of co-workers' alleged offensive sexual remarks and actions. They were awarded $34 million. In another important case involving the Life Insurance division of CNA, the two most senior officers in the division were forced to resign because of complaints from two women about sexual remarks - complaints that received no response from management. Recently, Ralphs Supermarkets, a division of the Kroger Company, settled a case for nearly $9 million in which a supervisor harassed a series of women, but the company merely continued to transfer the harasser to different stores.

Theater owners often say, "It can't happen here, so why bother with prevention." In fact, the National Organization for Woman found that 80% of women surveyed in a wide variety of industries had been sexually harassed. The EEOC now handles some 5,000 new sexual harassment cases annually, double the caseload of only a few years ago. So, "it can happen here and probably will!"

Of course, Sexual Harassment often is considered a perception issue. What one person thinks is a compliment, another feels is abusive and perceives as creating a "hostile environment," one of the legal definitions of Sexual Harassment. A study at a Missouri University indicated that 95% of women were offended by suggestive comments, staring and/or flirting, while 46% of men thought women would be flattered by the attention. The same study showed that 67% of men would be flattered if asked to have sex with a female co-worker, while 83% of women would be offended. The Supreme Court has ruled that only the victim's perception counts.

Clearly, Sexual Harassment is unacceptable behavior at work or any other place. However, theater owners who don't implement prevention measures are much more likely to suffer at the bottom line, as are harassers and their supervisors. The burden of proof is on the employer to show its innocence if a worker suffers harassment on the job. Thus, if major financial liability is to be avoided, theater owners must 1) publish a Sexual Harassment Prevention Policy, 2) establish a victim complaint process, and 3) conduct an on-going employee training program (including proof of training for a court), outlining what Sexual Harassment is and what to do when it occurs - from either a co-worker or a patron.

Mr. Bowman is chairman of TTG Consultants/Lincolnshire, a Los Angeles human capital consulting firm specializing in corporate and individual change. He has written several books, audio-based training series and articles on maximizing human potential in the workplace, and he has taught at UCLA for more than 12 years. He can be reached via e-mail at david@ttgconsultants.com.

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