Frisky Business:
Five Ways to Prevent Sexual Harassment
Sure the sex scandal brouhaha involving President Clinton is unique to his situation—he’s the leader of the free world, after all. But if someone accuses one of your salespeople, managers, or staffers of sexual harassment, it’s sure to generate more attention than you'd like—bad publicity, maybe; tension, dispute, and hostility, definitely.
Furthermore, don’t be fooled into thinking of sexual harassment in terms of federal employment laws that don’t apply to independent contractors.
Although federal sexual harassment laws, which stem from Title VII of the Civil Rights Act of 1964, don’t apply to independent contractors, states are now stepping in to fill the gap. California's Civil Code Section 51.9, for example, created a cause of action for sexual harassment by persons in “professional relationships,” including real estate practitioners.
Stating that it didn’t want to “leave an entire group of persons—independent contractors—who experience sexual harassment in the workplace without a remedy,” a Massachusetts Superior Court in 1997 held that a salesperson at Copley Square Associates, a Boston real estate company, could assert a sexual harassment claim against a defendant coworker. Although the case didn’t involve broker liability and was ultimately dismissed because of insufficient facts, you can imagine the disruption it caused.
“The good news,” says Andrea Christensen, an employment law specialist with New York-based Kaye, Scholer, Fierman, Hays & Handler, “is that brokers can take steps to prevent sexual harassment, or at least address it before it gets out of hand.”
She and other experts suggest a five-point plan:
1.Develop a written sexual harassment policy statement. Its goal should be to prevent harassment, and if it does occur, to encourage employees to report it; to ensure fair treatment for the complainant and the accused; and to render a prompt resolution of the complaint.
2.Make sure employees and salespeople are aware of the policy and have a copy. Periodically, at meetings and through posted notices, remind them of its existence.
3.Train. Go over the policy guidelines and answer questions.
4.Explain the complaint process, and give the person in charge of handling complaints guidelines for conducting an investigation. Designate at least two managers as point people so that you're covered if there's a problem or personality clash with one of them.
5.If the allegations are sound, discipline the offender. “It’s when an employer knew of the conduct and failed to take reasonable corrective measures that juries have levied large punitive awards,” warns Christensen. Often, inappropriate behavior can be corrected by bringing it to the person's attention.
That’s easier said than done. “The kind of person most often sued for sexual harassment,” says Christensen, “has a dynamic personality and is aggressive and a go-getter.” In other words, he (studies show that men are three times more likely than women to harass) fits the profile of a typical top producer—just the person you don’t want to discipline or disaffiliate but should.
“It’s not that grandfatherlytypes don’t harass,” she says. “It’s that gentle people tend to be written off as harmless and don’t get sued.”
Yes, the topic is uncomfortable, so much so that no broker or manager would discuss it on record with “TR Inc.” Still, addressing it with your staff and associates—through education, policies, and enforcement—is the best way to prevent a sexual harasser from leveling a judicial gavel at your bottom line.
—Robert Liparulo
Sexual Harassment:What Is It Anyway?
Since 1991, juries have returned more than 500 verdicts on sexual harassment, many of which are contradictory, according to Time magazine (March 23, 1998). The legal principle is hard one to get your arms around. So for now rely on an Equal Employment Opportunity Commission definition.
It describes sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" when acquiescence is a condition of getting or keeping a job, a promotion, or a pay increase (quid pro quo harassment) or when it substantially interferes with employees' ability to do their work (harassment that creates a hostile work environment).
Don't Go It Alone: There Are Resources
The agency charged with administering federal sexual harassment laws is the Equal Employment Opportunity Commission. Call 800/669-3362 for free literature on preventing sexual harassment. If you have specific questions, you must contact the EEOC. For the office nearest you, call 800/669-4000.
- For information about state and local sexual harassment laws, call your state's equal employment opportunity agency. "Find out whether your company is large enough for the state law to apply," advises Mary Stark-Hood, NAR’s managing senior counsel. Federal law related to sexual harassment applies only to businesses with 15 or more employees, not independent contractors. However, many state laws apply to companies with as few as two employees, and some include independent contractor within the definition of a protected person.
Another point to remember, says Stark-Hood, is that "even if a state doesn’t have a statute that protects independent contractors from sexual harassment, the federal and state laws apply to all employees in the office," such as secretaries and bookkeepers.
- NAR offers a Sexual Harassment Awareness and Prevention kit, which includes a training manual and video (designed for three continuing education credits), a sample policy, and guidebooks for sales associates. $150 for members; $175 for nonmembers. Call 800/874-6500 for item #126-150-LN.
- On the Internet, try the Harassment Hotline (www.end-harassment.com/harass.htm) for explanations of federal regulations and preventive measures. You'll find the well-written "Model Employment Policy Prohibiting Sexual Harassment" at www.michbar.org/sbm/harass.html. Just swap the few Michigan-specific references with your own state's requirements.
