Do you see Waldo?

Here’s what happened when the policy collided with the real world. According to the 4th U.S. Circuit Court of Appeals opinion in Smith v. First Union National Bank (2000), a female employee sued First Union for sexual harassment because her supervisor allegedly made a variety of offensive remarks, including the following:

Males are “natural leaders.”

Women are “too emotional to handle managerial roles.”

Women need a “good banging.”

The only way a woman can get ahead at First Union was to have sex with a supervisor.

The supervisor’s alleged conduct went on for a few years before the employee spoke up about it. Not a word from her. She didn’t complain to a soul. So when the employee sued the company it reasoned it would win because it had a sexual harassment policy that she did not reasonably take advantage of by waiting so long. But the court said, “Not so fast.”

The employee said she didn’t think she could complain under the policy because it merely prohibited unwanted sexual advances and other sexually provocative misconduct. Because the policy implied that a sexual advance is required for there to be sexual harassment, the employee kept her own counsel. She didn’t recognize that the harassment, which was gender-based but not sexually provocative, was covered under the policy.

Here’s Waldo: Sexual harassment is about more than just sex. So, corporate counsel need to look at their corporate policies to ensure they include broad prohibitions, such as prohibiting “unwelcome advances” or “all other verbal or physical conduct of a sexual or otherwise offending nature,” or that a hostile work environment includes “insults or inappropriate conduct based on protected status,” and then define “status” to include, among other things, sex.

Here’s a simple question that should have a simple answer: What should a policy say about who an employee should report to if she believes she is being subjected to a hostile work environment?

Let’s look at the city of Houston police department. Here’s what its policy said:

Ideally, any employee who believes that he or she has been the object of sexual harassment should ask the offender to stop using the offensive behavior. If such action does not cause the behavior to stop, then the employee should report the alleged act immediately to his/her supervisor. Supervisors, in consultation with the City of Houston’s Director of Affirmative Action, should make every effort to ensure that complaints of sexual harassment are resolved promptly and effectively. If the employee is not satisfied with action taken by the supervisor, or feels that the complaint would not be received objectively by that supervisor, the employee should bring that complaint to the attention of the Director of Affirmative Action.

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