Sexual harassment: A fine line

David Letterman has admitted a string of ‘creepy’ affairs with subordinates. Is that a form of sexual harassment?

When did sexual harassment become illegal?
Only three decades ago. Before the women’s movement challenged the status quo, women who ventured into the workplace had little recourse when they were subjected to sexual comments, groping, and pressure to sleep with the boss. The first time a court recognized sexual harassment as legitimate grounds for a legal complaint was in 1977, when a federal appeals court ruled in favor of a woman fired for refusing her boss’ sexual advances. Breaking from years of rulings that said relations between the sexes were outside the court’s purview, the judges decided that the boss was liable for violating the anti-discrimination provisions of the 1964 Civil Rights Act. The next step forward came in 1980, when the Equal Employment Opportunity Commission formally defined sexual harassment. If “unwelcome sexual advances” or lewd comments or behavior created “an intimidating, hostile, or offensive working environment,” it was sexual harassment.

What was the result of that ruling?
It opened the door to a wave of lawsuits. A precedent-setting complaint was brought in 1988 by a woman named Lois Jenson, who sued her employer, a mining company. Relying on the EEOC definition of a “hostile work environment,” she claimed that she and other women had been groped, crudely propositioned, confronted with hard-core pornography, and physically attacked by male miners. What’s more, she claimed, the mine’s managers refused to act on her complaints, saying, in effect, that “boys will be boys.” After a court battle lasting more than a decade, the mine settled with Jensen and 14 other plaintiffs for $3.6 million. The outcome put employers on notice that they had to take harassment complaints seriously.

Are sexual-harassment laws effective?
They’ve certainly gotten the attention of employers. They reacted quickly to a 1998 Supreme Court ruling, which declared that employers could be financially liable for an employee’s sexual harassment, even if the employer was unaware of it and had anti-harassment policies in place. “The court said the see-no-evil, hear-no-evil defense won’t work,” says Kathy Rodgers of the National Organization for Women’s Legal Defense and Education Fund. Facing the prospect of harsh financial penalties and a tainted reputation, the vast majority of companies—97 percent, according to the Society of Human Resource Managers—have written policies against sexual harassment, and 62 percent have formal anti-harassment training programs. The number of sexual-harassment complaints filed with the EEOC has fallen steadily in recent years, from 16,000 in 1997 to 12,510 in 2007. The decline, experts say, is the result of companies stepping up their sexual-harassment training and enforcement.

What about office affairs?
Courts have recognized that workplace romances are common in contemporary working life—indeed, 59 percent of respondents to a recent survey said they’d had at least one romance with a co-worker.
But the issue of sexual harassment does shadow such relationships, creating confusion about what is and isn’t permissible. “It’s a whole new set of rules,” says Judy Gillen, a harassment consultant in Duluth, Minn. “The fun between all of us has sort of taken on a new dimension. You feel like you’re walking on eggs.”

Can bosses date subordinates?
That’s one of the biggest minefields. CBS is looking at whether Letterman committed harassment by having a series of affairs with young women working for him. Some legal scholars say Letterman may be vulnerable, because the great disparity in power between him and his assistants raises the question: Did they feel obligated to accede to his sexual overtures? Letterman’s most recent girlfriend, Stephanie Birkitt, reportedly was paid $200,000 as his assistant, traveled with him, received a loan to attend law school, and appeared frequently on the show. Other employees who didn’t become romantically involved with Letterman could claim sexual harassment, on the grounds that they were denied advantages given to employees who slept with the boss. Some nervous employers now even require employees who are dating to sign a “love contract,” in the hope of heading off a complaint before it’s filed (see below).

How else do you stay out of trouble?

“Don’t be a jerk,” says human-resources specialist Barbara Kate Repa. “There is plenty of room to be friendly and personable without offending co-workers of either gender.” The law says that behavior amounts to harassment if it’s persistent and unwanted. Don’t touch colleagues, especially if they wince, frown, or pull away. It’s permissible to compliment a co-worker on her appearance, but not if the compliment includes remarks about her breasts or legs. If you tell a racy story in the office and it clearly offends a colleague, don’t tell another one. Posting photos of naked women on the wall, displaying porn on your computer, or any behavior of a sexual nature that upsets employees can meet the legal definition of a hostile workplace. Although sexual-harassment law is full of gray areas, says corporate trainer Jim Fletcher, “a little common sense goes a long way.”

Putting romance in a contract
Heartache and hurt feelings are common when a relationship ends. But when the relationship is between co-workers, hurt feelings can sometimes lead to lawsuits alleging sexual harassment. Wary of litigation, many companies now insist that employees who become involved sign a “love contract.” A typical contract states that the relationship is consensual and that neither party is being harassed. In addition, both people involved promise that if either one starts to feel harassed, they’ll follow established company procedures for dealing with a complaint. “It was awkward,” says Christine Barney, who signed a love contract before she started dating a subordinate at the Miami public relations firm she co-owns. Her business partner, Bruce Rubin, makes no apologies for unromantically insisting that Barney and her boyfriend document their involvement in writing. Mindful that damage awards for sexual harassment frequently top $250,000, Rubin says that “once they signed the document, I felt much better as a manager. You have to protect your business from litigation.”


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