Ask Little Rock lawyer Carolyn Witherspoon whether she’s ever been sexually harassed, and she says “sort of yes and no. I’ve had inappropriate comments made to me in my younger days of practice but never a request for sex.”
The comments, however, made an indelible impression on her. They were about her legs and they were made in front of male colleagues, mortifying her. “I can still see it. I had a shocked look on my face. It seemed like the whole room stopped moving.”
Witherspoon withdrew from the room and later told the commenter she found his words offensive.
Did he understand?
“Probably not,” she said. “There were two incidents, so it stopped after the second one.”
The Harvey Weinstein scandal and all the subsequent sexual harassment scandals — and preceding, including those involving Fox News’ Roger Ailes and Bill O’Reilly — have shredded the veil covering sexual harassment in the workplace. Interviews with employment lawyers and others in Arkansas indicate that as the law regarding sexual harassment has evolved, so has the nature of the cases.
What has remained constant, however, is the need for employers to establish clear policies regarding behavior in the workplace. The establishment of boundaries and education about those boundaries, according to lawyers and human resources experts, are key.
Witherspoon, a director of the Cross Gunter Witherspoon & Galchus law firm, which focuses on employment law, has been practicing since 1978 and defends clients against claims of sexual harassment.
It was a 1986 U.S. Supreme Court ruling that recognized sexual harassment as a violation of Title VII of the Civil Rights Act of 1964 outlawing discrimination on the basis of sex. In that case, Meritor Savings Bank v. Vinson, a bank teller alleged that her boss raped her.
Two of the biggest changes in the law, Witherspoon said, were ushered in by the Civil Rights Act of 1991, which permitted trial by jury in discrimination claims, and the U.S. Supreme Court’s decision in Faragher v. City of Boca Raton.
In that case, the court held that an employer was liable for acts of employees that created a “hostile work environment,” but that an employer could avoid liability if it had sought to prevent and correct sexual harassment. “If an employer had a policy and followed that policy and provided prompt remedial action, then in most cases the employer would have a defense to an action brought by a plaintiff alleging sexual harassment,” Witherspoon said.
The nature of sexual harassment claims in the workplace has also changed. Same-sex harassment, for example, is now recognized as a cause of action. And, Witherspoon said, she sees fewer claims of “quid pro quo” in which a supervisor demands sex in exchange for a raise or promotion. “We’ve done a pretty good job of educating our workforce,” she said.
“What you see now are mostly cases involving hostile work environment,” Witherspoon said.
Witherspoon said a typical case might involve co-workers who have a breezy relationship, one in which they kid around a lot. But when one becomes a supervisor, the relationship can suddenly shift, leading to conflict.
But most of what she sees is an employee coming into a workplace that tolerates a lot of “rowdy” behavior, behavior the employee finds offensive. The worker complains and then finds he’s alienated his co-workers with his complaints.
Cross Gunter works to educate employers about how to prevent and address sexual harassment, focusing on three elements: first, having a clear, stated policy; second, educating workers about that policy; and third, “you put your money where your mouth is and you make sure that you don’t tolerate any kind of harassment,” Witherspoon said.
In addition, in the past 30 years, many companies have developed human resources departments whose people are trained to recognize sexual harassment and respond appropriately to it.
“There’s a lot of work that goes into making sure that the workplace is a safe workplace,” she said.
It may be ancient, but the Golden Rule serves her well as a training approach, Witherspoon said. “Would you want your mother to be treated like this or your daughter or your sister or your brother or whatever, some member of your family?” Witherspoon said she asks employers. “Would you want those family members to be treated like this?”
It’s equally important for employers to address and take action on complaints. Even if a complaint has been made to the U.S. Equal Employment Opportunity Commission, “we recommend that employers do their own independent investigation, and we can help them with that.”
Then, regardless of whether it’s a charge of discrimination filed with the EEOC or it’s an internal complaint, “the employer has to take some prompt remedial action,” Witherspoon said.
(Read more from Carolyn Witherspoon in this week’s Executive Q&A.)
‘Really Proactive’
In Arkansas, lawyer Melva Harmon said, lawyers underwent a lot of training on sexual harassment law during the 1990s, in the aftermath of several precedent-setting court cases and publicity about the issue — for example, that arising from the Anita Hill hearings. Harmon, of Little Rock, has handled sexual harassment claims by plaintiffs and has been a mediator for the EEOC since the mid-1990s; she’s participated in hundreds of mediations.
Lawyers in Arkansas went on to train employers, educating them in the law, Harmon said, and employers developed sexual harassment policies for the workplace. Those policies have since evolved into simply anti-harassment policies, whether that harassment is focused on gender or race or disability or another protected class.
“We have a really good employment bar here in Arkansas,” she said. “The lawyers that represent companies were really proactive in contacting their clients and making sure they had policies that explain to an employee what is unlawful and how to bring a complaint.”
That aggressive response to the issue also led Arkansas employers to develop procedures on investigating sexual harassment allegations. “Almost every employer of any size anymore has those policies and procedures,” Harmon said, so the news about the allegations in the entertainment industry caught her by surprise.
These days, Harmon said, she sees more race and age discrimination and retaliation claims.
“Employers … really took seriously claims of sexual harassment and developed their policies and procedures,” Harmon said. “I think sometimes they’re so afraid of the liability for it that they overreact because the law doesn’t require that you fire someone.”
The law permits less-drastic forms of punishment, she said. “The law just requires you to take effective action to correct this problem and end it.”
Harmon also emphasized the importance of employers providing sexual harassment training to their workers.
But she recognizes that what constitutes harassment can be hard to define, depending on culture and workplace. Take joke-telling featuring sexual innuendo, for example, “that varies by workplace,” Harmon said. “In some places that’s common, and people don’t realize [they] can get in trouble for that.”
In addition, she said, many people wind up dating and marrying co-workers. “It’s just a very difficult area. You don’t want to police people’s personal lives.”
Harmon said more employers now have workers sign arbitration agreements specifying that if a dispute arises, the matter will be brought to arbitration. Employers think they’re more likely to get a fair ruling in arbitration, she said, and that there’s less likelihood of punitive damages being awarded.
Asked whether she’d ever been sexually harassed, Harmon said she had, but didn’t want to discuss it.
It’s About Power
Donna Merriweather is state director-elect of the Arkansas Society for Human Resource Management and executive vice president and chief human resource officer at Bear State Bank of Little Rock. She isn’t sure that sexual harassment itself has changed much in her 30 years in HR, but “it has changed to expand with technology.” Now there are even “more ways to experience harassment.”
Also on the rise has been retaliation. “You may have a claim within your company, but you’ve got to take that one extra step to ensure that that employee or that team member is does not experience retaliation from the person they may have filed a claim on.”
Arkansas SHRM tries to address workplace sexual harassment “from the top; your top leadership should buy in,” Merriweather said, and it urges employers to have legal counsel review their policies.
And companies should make it easy and safe to report harassment. Bear State, for example, has an anonymous hotline.
Merriweather said she was sexually harassed in the workplace many years ago, when she was 19. She didn’t know what to do — “I wasn’t even sure there was a law” — so she quit her job the next day. Merriweather finds it unpleasant to talk about, but that experience led to her choice of a career in human resources.
“What I did learn from it eventually is that there are laws and there are reasons for those laws,” she said. “It was a life lesson.”
Ultimately, Merriweather said, sexual harassment is “about power. It’s not necessarily the person or the harassee; it’s about the power that they have over the harassee. It is a terrible power problem.”