 National Association of Counties * Washington, DC / Vol. 30, No. 14 * July 20, 1998 senior staff writer Some counties are re-examining their policies on sexual harassment while others are convinced theirs are ironclad in the wake of two Supreme Court rulings late last month on sexual harassment. In a pair of rulings June 26, the last day of its term, the Supreme Court ruled 7-2 (in both cases) that employers can be held liable for sexual harassment by their employees even if management didn't know about the behavior and even if the person's job didn't suffer. In the Faragher vs. City of Boca Raton case, Beth Ann Faragher worked as a lifeguard for the city of Boca Raton, Fla. from 1985 to 1990. in 1992, she sued the city and two lifeguard supervisors; she accused them of touching her inappropriately and making offensive gestures. Lower courts ruled she couldn't sue the city because management didn't know about the harassment. But the Supreme Court disagreed, saying the city failed to disseminate its policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors. Justice David Souter also wrote that the city's policy did not make it clear that the lifeguard's supervisors could be bypassed to register the complaints. In the second case, Burlington Industries vs. Ellerth, Kimberly Ellerth sued her former employer, Burlington Industries, over the alleged sexual misconduct of her boss's boss, saying he touched her inappropriately and told offensive jokes. Justice Anthony Kennedy wrote that "an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Kennedy also wrote that if there is no clear job loss, the employer can overcome liability by showing that it took "reasonable care to prevent and correct" harassment and that the employee "failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Justices Antonin Scalia and Clarence Thomas dissented in both cases. Thomas objected that the court's rule "applies even if the employer has a policy against sexual harassment, the employee knows about the policy and the employee never informs anyone in a position of authority about the supervisor's conduct." Harris County, Texas plans to 'beef up' training "Basically, we want to beef up our training, in view of the Supreme Court ruling," said Wayne Drusch, safety and training administrator in the Harris County (Texas) Human Resources and Risk Management department. "We offer it [training], but not everyone comes. We're going to try to get more attendance." He said the training won't be much different than in the past, but that it would "spell out changes in the law. ...The county's more concerned now because of the increased liability." In the past, sexual harassment training sessions were included in a county catalogue of courses available to county employees. But now, Drusch says, flyers will go out and memos will be sent to department heads seeking attendance. No changes planned in Maricopa County, Ariz. They don't plan to make changes in Maricopa County, Ariz., where they are confident that procedures currently in place will keep problems at bay. "We're not doing anything different," says Russ Binicki, manager of employee programs for the county, which employs 14,000. "We have a very strong policy and very aggressive training." He said the Supreme Court rulings caught him a bit off guard. "I was kind of surprised by that. I would think you'd need to be aware of it [sexual harassment] in order to do something about it." Binicki helps about 500 county employees each year learn about sexual harassment. The three-hour training session consists of a lecture and question-and-answer period, as well as acted-out, hypothetical dramatizations. In addition, the county posts information posters about the law, including a phone number to the Human Resources Department for anyone to call. The county also has an internal process that employees can take advantage of, rather than going outside the office to file an official complaint. At new employee orientations, newcomers are told the county has "zero tolerance" for sexual harassment. Small counties offer training too In tiny Piscataquis County, Maine (population 18,000), the county holds sexual harassment training once a year for new hires, says Carolyn Doore, who has worked for the county for 27 years and wears a variety of hats - personnel director, county clerk and deputy treasurer. In all, the county employs about 60 people. The University of Maine Extension Office holds the training sessions, which include a video and a talk on sexual harassment and how to file a complaint. Doore said the Supreme Court rulings have not been much of a topic of conversation there. What can your county do? In a recent article in the Philadelphia Inquirer, area lawyers were asked what companies can do to ensure they are complying with sexual harassment law. The following suggestions can easily be adapted to county government as well:
The rulings "only go to reinforce that basic prescription"
of thorough policies and training, set out in a column he wrote for County
News in 1996, said Phil Rosenberg, president of the National Association
of County Human Resource Administrators. (To read the column, go to http://www.naco.org/archive/cnews/96-12-23/index.htm.)
Rosenberg, who oversees the human resources department in Broward County,
Fla., is author of "The HR Doctor Is In," which appears on a regular
basis in County News. |