Mark Pestronk
Mark Pestronk

Q: With all the sexual harassment suits and firings in the media and entertainment businesses, I have been thinking about how I or my agency could be found liable. How, exactly, is "sexual harassment" defined for liability purposes? What law does it violate? I have heard that someone could sue my agency for sexual harassment even if I had nothing to do with it. Is that really correct? What should I do to avoid such lawsuits?

A: Sexual harassment has two definitions:

1. Quid pro quo: a supervisor or one in an authority position requests sex or a sexual relationship in exchange for favors, such as promotions or raises, or in exchange for not firing or otherwise punishing the employee.

2. Hostile work environment: a pattern of inappropriate and unwelcome behavior that consists of sexual jokes, photographs or threats. The behavior must be so pervasive as to create an intimidating and offensive work environment, so isolated incidents, jokes and teasing do not qualify.

Sexual harassment is considered to be a form of sex discrimination under Title VII of the Civil Rights Act of 1964, which applies to all U.S. employers with 15 or more employees. The law gives victims the right to sue for damages in federal court.

Many states have their own sexual harassment laws that apply to smaller employers, not just those with 15 employees or more. Those laws allow the victim to sue for damages in state court.

In a travel agency, the perpetrator can be a co-worker, a manager or executive, an independent contractor, a client or a supplier. As the CEO, it is your responsibility to try to make sure that none of your employees is sexually harassed.

The Supreme Court has held that a company can be liable for supervisors' sexual harassment regardless of whether or not top management knew about the conduct. So, it is true that your agency could be liable even if you did not know about the harassment.

At the same time, the Supreme Court held that there is a way that an employer can win a sexual harassment suit. Once the employee proves harassment, the employer can win by showing all three of these things:

1. The employer had already exercised reasonable care to prevent any sexually harassing behavior. "Reasonable care" requires that every employer subject to the law must have an anti-harassment policy in place and must offer periodic reminders or training sessions to implement the policy.

2. The employer had exercised reasonable care to correct promptly any sexually harassing behavior once the employer found out what happened. This means that the employer must have in place a retraining program to deal with harassers promptly and decisively, such as disciplining the employee or even severing ties with an independent contractor, client or supplier representative.

3. The employee unreasonably failed to take advantage of a complaint procedure that bypasses his or her supervisor. So, you must have such a formal procedure in place and must communicate it to every employee.

The court further clarified that this three-part defense cannot be used if the employee has already been fired, demoted or undesirably reassigned as a result of not giving in to harassment. Once any of this has occurred, all you can do is to settle any claim.

Victims of sexual harassment are speaking out and filing suit. Therefore, it is imperative that all travel agencies with at least 15 employees adopt anti-harassment policies with formal grievance procedures and then deal quickly and decisively with harassment. You can find good sample policies by Googling "sample sexual harassment policy."

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