Story courtesy of the Tyler Morning Telegraph
By DAYNA WORCHEL
Staff Writer
TYLER -- Workplace sexual harassment allegations are not easy to prove and can be quite costly to defend, some Tyler lawyers said.
The issue of sexual harassment recently drew a national spotlight through accusations against former presidential hopeful Herman Cain, who shut down his candidacy three weeks ago. In Texas, the Equal Employment Opportunity Commission or the Texas Workforce Commission Civil Rights Division must first conduct an investigation. After 180 days, the employee can ask for the right to sue from the commission, and any suit must be filed within 90 days.
"The harassment must be severe and it must be pervasive," said Rosemary Sage Jones, an attorney with Ramey & Flock and board certified in labor and employment law.
She said one employee complimenting another on appearance once does not necessarily constitute sexual harassment.
"Just because conduct may be inappropriate does not mean that it meets the definition of severe and pervasive, which affects the terms and conditions of employment," Ms. Jones said.
Sexual harassment charges sometimes surface when a consensual dating relationship in the workplace goes bad, said Ms. Jones, who represents employers in such cases. "I encourage employers to have a no dating policy in place."
For a case to proceed in court, the harassment must interfere with the ability of the employee to perform his or her job, and the employee must show that the employer knew about the harassment and did nothing to stop it, Ms. Jones said.
Sometimes an employer will pay a claim because it is less expensive than taking a case to trial, Ms. Jones said.
"Just because there is a settlement does not mean it is true," she said.
The cost to an employer of defending sexual harassment charges can run about $100,000, Ms. Jones said.
"If an employer can settle and make it go away for $45,000, they will," she said.
Title VII of the Civil Rights Act of 1964 and the Texas Labor Code protect individuals against employment discrimination on the basis of national origin, age, sex, race, color and religion, Tyler attorney Andy Tindel said.
"Sexual harassment is a type of sex discrimination claim," said Tindel, who has mediated sexual harassment cases.
Both attorneys said there are two types of sexual harassment — Quid pro quo, or something in exchange for something else, and creating a hostile work environment.
"Quid pro quo arises when an employee is terminated for refusing to submit to a supervisor's sexual demands, or when an employee's submission was an express or implied condition of receiving job benefits," Tindel said.
A hostile work environment condition is harder to prove because it is usually in the eye of the beholder, he said.
"Sexual harassment occurs in this instance when an employee is subjected to sexual innuendoes, remarks and physical acts so severe or pervasive as to alter the conditions of employment and create an abusive work environment," Tindel said.
If someone is being harassed, he or she needs to report the conduct immediately to workplace officials, Ms. Jones said. If reporting it does not bring relief, the employee needs to contact the commission, she said.
Federal and state laws exist that prevent employers from retaliating against employees who prevent sexual harassment, Ms. Jones said. Common ways for an employer to retaliate might be to fire or demote an employee who made the complaint, she said.
Most employers want to create a safe place for employees to work, said Rodney Klein, an education and training manager with the Equal Employment Opportunity Commission, whose job includes conducting training sessions for smaller businesses who don't have a human resources department.
Sexual harassment charges filed with the commission and state and local employment agencies have decreased over the past several years, according to figures from the Texas Workforce Commission and the Equal Employment Opportunity Commission.
In Tyler and Smith County combined, 16 sexual harassment cases were filed with the commission in fiscal year 2002. The numbers fell to a low of five cases in Tyler and Smith County combined in fiscal years 2006 and 2007 but increased again in fiscal years 2010 and 2011.
Mark Lavergne, deputy director of communications for the Texas Workforce Commission, said not all sexual harassment cases in Texas are filed with his agency.
"Some are filed with the Equal Employment Opportunity Commission, and others may be filed with other Fair Employment Practices agencies, which are agencies with authority to enforce federal discrimination law," Lavergne said. The workforce commission's civil rights division is the state agency Fair Employment Practices agency in Texas, Lavergne said.
When the workforce commission receives a complaint, it goes through a screening process to ensure that the allegation falls under the jurisdiction of the commission, Lavergne said.
If the complaint is within the commission's jurisdiction, the agency drafts a charge that is presented to the complainant to sign and return to the workforce commission. Once they receive the signed charge back from the complainant, the investigators from the commission handle the claim.
Lavergne said if the allegation does not fall within jurisdiction, his agency forwards it to the Equal Employment Opportunity Commission if it is within that federal agency's jurisdiction.
"We don't know the reason for the decrease in sexual harassment charges (at the federal level), and thus prefer not to speculate, though one possible explanation could be that some employees fear retaliation if they come forward," Klein said.
And the proportion of sexual harassment charges filed by men has steadily increased, Christine Nazer, commission spokeswoman, said.
In fiscal year 2002, of 14,396 sexual harassment claims filed with the Equal Employment Opportunity Commission, about 14.9 percent were from men, according to figures from its website.
And in fiscal year 2010, of 11,717 total claims received, about 16.4 percent were from men.
Same-sex harassment, whether male-on-male or female-on-female, violates the Civil Rights Act, Ms. Nazer said. She said the commission does not statistically track charges of same-sex harassment because the agency's charge data system does not identify the gender of the alleged harasser.
Anecdotal evidence suggests that many of these charges involve harassment by other men, Ms. Nazer said.
"More men see this as not just a women's issue anymore," Klein said.
Both Ms. Jones and Tindel said employers are more knowledgeable now about what constitutes sexual harassment and will take steps to deal with it. Often, an employer will offer special classes or seminars to educate their employees.
Tom Mullins, president and chief executive officer of Tyler Area Chamber of Commerce, said the chamber co-sponsors luncheons with East Texas Human Resources Association to educate business owners about the legal issues involved with sexual harassment.
He said more than 200 people attended the most recent sold-out luncheon.
