By Quenda Behler
Okay, here's the situation: You've hired a female carpenter,
and while your guys are cool, she's having trouble with the
suppliers and the subs. Could you be in trouble if you don't do
something about that?
Well, you might. I'm not going to talk about the crazy quilt
of rules in all 50 states. I'll just concentrate on the federal
laws. Even though you may not be directly covered by the
federal laws, odds are your state laws look very similar.
The sexual harassment rules that we're talking about in this
column evolved out of antidiscrimination laws established as a
result of the Civil Rights Act of 1964. Those rules are based
on the idea that sexual harassment discriminates against people
by discouraging them from working for particular companies. The
victims of this type of discrimination are typically women,
though men have been found to be victims, too.
The most blatant forms of sexual harassment involve actual
sexual contact. The contact might include sexual bumping,
groping, or repeated unwanted attention (which can sometimes
amount to stalking, a criminal offense). Some behaviors fall
into the category of a quid pro quo, where a supervisor offers
perks such as raises and promotions in exchange for sexual
favors. The flip side is when a supervisor threatens to fire or
give undesirable job assignments to an employee who refuses a
Other forms of sexual harassment involve behaviors that people
may not think of as sexual. For example, telling crude stories,
making offensive jokes, or posting lewd cartoons on the job
site can fall into the category of sexual harassment. A
particularly famous case involved male employees repeatedly
hiding frozen bull testicles in a woman's desk. Such behaviors
create a "hostile" work environment, defined as one that is so
intimidating and offensive that it's difficult for the victim
to work in it.
Who Is Responsible
As an employer, you can be held responsible for a hostile work
environment that you did not create. Legally, it makes little
difference whether the hostile environment was created by you,
one of your employees, or someone on the job who is not your
employee. Federal cases have made it clear that an employer can
be held liable for the preventable acts of a third person
(customer, supplier, or sub, for example) when the victim must
interact with that person as part of the job.
Liability for the actions of a person who doesn't work for you
is based on the idea that employers have a duty to supervise
and control what happens on their job sites and to protect
their employees by responding to harassment that the employers
knew or should have known about. Employers must have some level
of control over the situation in order to be liable, which
automatically precludes liability for first-time or for unknown
activity. Employers cannot be guilty of negligence without
knowledge and an opportunity to intervene.
How to Protect Yourself
Your employee handbook should include a sexual harassment
policy. It should explain what sexual harassment is (many books
and websites provide this information) and state that you will
not tolerate it. The policy should also establish a complaint
procedure, which tells the offended employee how to make a
complaint and who to make it to.
Legal precedent has made it clear that if the employer has a
complaint procedure and the offended employee doesn't complain,
the employer is not guilty of allowing a hostile work
environment to occur. The U.S. Supreme Court has found that
employees who fail to use a company's internal complaint
procedure cannot hold the company liable later on.
However, and this is very important, the complaint procedure
in your handbook must be real. The court won't hold you liable
for things you honestly didn't know about. But it might hold
you liable if it determines that you looked the other way or
went out of your way not to know what was going on.
If you get a complaint, investigate it. This does not mean you
should automatically fire someone who is accused of
inappropriate behavior. You can create a whole different set of
problems by firing someone for something he didn't do. Start by
finding out what's actually happening. If something offensive
is going on, take steps to stop it. At a minimum, warn the
offending party that the behavior will not be tolerated. Keep
an eye on the situation so you'll know if it continues.
Whatever you do, do not retaliate against the complainer.
It doesn't matter whether the offending person is a customer,
a supplier, or a sub. Explain to that person that you won't
tolerate such behavior toward your employees and that if it
continues, you will take steps to stop it. That might include
going to the offending person's supervisor or buying from a
different lumberyard or supplier. If the offender is a
customer, you must state emphatically that you do not allow
sexual harassment on your job sites and that that rule applies
to everyone. If the behavior continues, consider moving the
victim to a different site or scheduling the job so the victim
is never alone with the customer.
If the offending party is a sub, you can treat that sub as
being in breach of contract. Of course, that only works if your
subcontractor agreement states that the sub agrees to follow
your policies as stated in your employee manual (and if your
manual contains a sexual harassment policy). If that isn't
included in your agreement, you could be held liable for
helping to create a hostile working environment because you
didn't see to it that your sexual harassment policy applied to
your subs. You should include that stipulation in all your
contracts with your subs — not just to prevent sexual
harassment — but also to give you leverage on issues
like job safety, job cleanup, and customer relations.
If a Complaint Occurs
If a complaint occurs, document everything. I mean everything:
the complaint, your investigation, what steps you took, and
what you said to everyone including the person who complained.
Be sure to date every entry. It may be annoying to have to
write all that stuff down, but it could save your behind down
Remember that antidiscrimination laws are not just about
hiring people, they are also about making it possible for
people to do the work they were hired for.
has practiced and taught law for over 25
years and is the author ofThe
Contractor's Plain-English Legal Guide(www.craftsman-books.com).