Nearly 20 years after the Clarence Thomas-Anita Hill sexual harassment affair, the number of workplace harassment cases is still rising. On the surface, this seems puzzling — awareness is up, but lawsuits brought over inappropriate and offensive workplace behavior continue to grow.
However, there are a few factors behind this “phenomenon,” with two being key. First, there are no clear boundaries for what constitutes harassment, no one-size-fits-all standard, which leaves employers vulnerable to these types of lawsuits. And, the Internet/e-mail has created an environment ripe for harassment-type issues.
Several Mississippi labor/employment lawyers in Mississippi see no let-up in workplace harassment cases, but are encouraged that more companies are becoming proactive in preventing these issues from arising, and dealing with them promptly and appropriately. And, one University of Mississippi (UM) educator thinks that now, more than ever, workers have to put differences aside.
According to the U.S. Equal Opportunity Commission (EEOC), harassment charges are climbing. It reports 23,047 harassment cases were filed with the EEOC and state and local fair employment practices agencies around the country in fiscal year 1997. In fiscal year 2007, 27,112 cases were filed.
Discrimination complaints are likewise rising. In fiscal year 1997, 80,680 cases were filed, compared to 82,792 in 2007.
There are a number of factors feeding this rise in harassment/discrimination lawsuits, says Paula Graves Ardelean, a member of the Jackson-based law firm of Butler, Snow, O’Mara, Stevens & Cannada, PLLC. One is the lack of specificity.
“There is still no clear line in what constitutes harassment,” she says. “It depends upon what is called the ‘totality of the circumstances.’”
She adds jokes, “innocent” flirtation — even conduct at an office party — may leave an employer vulnerable to liability. But, the judiciary is going to consider all of the circumstances surrounding the alleged inappropriate behavior when determining whether law has been broken.
One difficulty businesses face in adopting an internal anti-harassment policy is that it is impossible to spell out specifically every conduct or behavior that violates said policy.
Ardelean says training is extremely important, a point Susan Desmond, a shareholder with the law firm Watkins Ludlam Winter & Stennis, P.A., also based in Jackson, agrees with wholeheartedly. Desmond worries that the current economic slowdown may cause harm here.
“Training is key, and when the economy takes a downturn, a lot of times the training budget is the first to get cut,” she says.
Both attorneys emphasize that businesses must also make sure their reporting and follow-up procedures are sound. Businesses should encourage employees to report incidents quickly for the good of the company, the alleged victim and even the accused.
Perhaps lessons were learned from the Thomas-Hill case, at least in terms of sexual harassment. The number of these type cases held pretty much steady from 1997-2007 (24,728 in 1997, compared to 24,826 in 2007). Racial discrimination cases, too, held fairly even (29,199 in 1997, compared to 30,510 in 2007).
However, the number discrimination cases filed involving national origin and religion are up sharply. The number of national origin-related filings went from 6,712 in 1997 to 9,396 in 2007, and religious discrimination cases went from 1,709 to 2,880.
In both groups, there was a spike in 2002, which Desmond says can be attributed to the events of September 11, 2001.
“Post-9/11, we saw a tremendous increase in cases involving national origin,” she says. Middle Easterners became the brunt of jokes, or worse. She adds that, sadly, a number of these complaints were from Middle Easterners who were not even Muslims.
According to the Anti-Defamation League (ADL), Americans at least are equal opportunity discriminators. It found in 2005, anti-Semitic incidents reached their highest level in nine years.
Peyton Irby, also a shareholder with Watkins Ludlam, says the Internet has created a vehicle perfect for breeding harassment cases. E-mail and blogs have created another headache for employers, he says.
“Somehow, people feel that if they write in an e-mail, they are insulated,” Irby says. “Because they just wrote in an e-mail or on a blog, and didn’t actually say it, it’s okay. Obviously, that is not the case.”
Policing e-mails is difficult at best. Many businesses, especially smaller enterprises, simply do not have the time or the resources to properly monitor employees’ e-mail practices. This leaves employers wide open for liability, Irby says.
All for one
There has never been a time in the history of American business when employee cooperation and self-policing is more important than now. That is the view of Walter Davis, assistant professor of management at UM and a certified senior professional in human resources.
Davis says, “In the rapidly changing workplace, many employees now work in project teams, product development teams and even in leaderless production teams — groups that make their own decisions, such as hiring, firing, scheduling and ordering inventory. Instead of telling employees how to do their jobs, modern-day supervisors need to guide employees to learn and manage for themselves.
“As roles change in the workplace, we need a better understanding of how the relationships between supervisors and subordinates and between supervisors and their own co-workers are changing over time. Employees are working without direct supervision. To some extent they must invent their own jobs, manage themselves and determine what contributions they can make to an organization’s success.
“More and more being effective in the workplace is going to be about not only developing technical skills, but also learning how to build relationships inside and outside the organization.”
Contact MBJ staff writer Wally Northway at firstname.lastname@example.org.