Before you read this chapter, you might want to review the employment laws for women and minorities in Chapters 2, “You Gotta Know the Laws,” and 3, “Still More Laws,” respectively. During the first 20 years of these laws, most complaints related to hiring and firing. Although these types of charges are still prevalent, more and more complaints in recent years have involved on-the-job problems such as sexual harassment, and treatment of minorities and women in the workplace. In this chapter we’ll explore some of the major issues managers face in applying these laws on the job.

Articles about sexual harassment appear again and again in the newspapers and on television. In one case, the president of a famous cosmetics company was accused of sexually harassing 15 female employees; the company paid the women $1.2 million in an out-of-court settlement. In another, a U.S. senator was forced to resign because he was accused of sexually harassing at least 26 women who worked for him.

It’s not only company presidents and senators who are accused of sexual harassment. Organizations of all sizes and types face sexual harassment charges by both female and male employees. Allegations involve managers at all levels and even nonmanagerial employees.

In 1998, the Supreme Court handed down two major decisions related to sexual harassment. In one case, it ruled that a company can be forced to pay damages to workers who are sexually harassed by a supervisor at any level. The general ruling was that companies and public employers are automatically liable for sexual harassment. A company can be liable even if it knew nothing of the harassment. In effect, companies must prove their innocence if a worker claims sexual harassment on the job; when in doubt, the company is liable. As such, the burden of proof is on employers.

However, the ruling did contain some good news for employers. If sued, companies can sometimes successfully defend themselves by proving that they have a strong policy against sexual harassment and that they respond quickly to complaints. They also must show that the victim failed to take advantage of this policy by failing to file a complaint.

In another case, a Chicago woman claimed that her boss made repeated comments to her with sexual innu-endos. He urged her to wear shorter skirts, and told her that she was not “loose enough” to suit him. He commented he could make her life very hard or very easy.

After a year the woman quit and sued the company, Burlington Industries. A lower court judge threw out her claim because she had not suffered a “tangible job consequence,” such as a demotion, for refusing her supervisor’s advances. However, the U.S. Court of Appeals in Chicago overturned the lower court’s decision, holding Burlington liable for the supervisor’s harassment even though no specific job consequence had been involved.

The Supreme Court agreed. Although the woman had not suffered a tangible job action at the hands of her employer, Burlington was still subject to liability for her manager’s action. To defend itself, the company would have had to prove that it “exercised reasonable care” to prevent harassment in the workplace. Having a written policy on sexual harassment—publicized to employees and enforced by management would be considered “reasonable care.”

What one might assume is sexual harassment isn’t always the same as what the courts have defined it to be. The legal definition of sexual harassment covers much more than just demanding sexual favors for favorable treatment on the job (naturally, these types of demands are included).

The courts and the EEOC define sexual harassment as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when …

What does this mean in plain English? Let’s see how this concept works on the job.

You would think that corporate presidents and senators would have enough common sense to refrain from making explicit sexual demands, and most do. People in positions of authority who sexually harass their subordinates usually use much more subtle tactics. The harasser doesn’t make any actual demands; the demands are implied. References are made to other employees who have benefited by being “more friendly.” Comments about a person’s physical attributes and similar remarks are made. These can be interpreted as harassment.

“Wait a minute! If I tell a woman that she’s attractive, that’s harassment?” It depends on what you say and how you say it. A comment such as, “That’s an attractive dress” is much different from the comment, “That dress is sexy.” The statement, “I like your new hairdo” is also acceptable, but the statement, “Wearing your hair like that excites me” is not acceptable.

As noted earlier, according to its legal definition, sexual harassment isn’t limited to demands for sexual favors. It also includes conduct that creates an “intimidating and hostile work environment.” This may include subtle mistreatment of women or actions that have been accepted as “normal” for years but really offended minorities or women.

Ken’s team had always been all male; now two women have been added to his group. Some of the men resent this “intrusion” on their masculine camaraderie; as a result, they make life unpleasant for the female team members. The men make snide remarks, give the women incorrect information that causes them to make errors in their work, and exclude them from work-related discussions. No actions are taken that can be interpreted as “sexual” in nature, but it still qualifies as sexual harassment. The men have created a hostile work environment for the women.

Tina works in a warehouse. The street language some of the men continually use offends her. When she complains she is told, “That’s the way these guys talk. They talked this way before women worked here, and they’re not going to change now. Get used to it.” Because people might find that this dirty language creates “an offensive work environment,” it can be legal grounds for a complaint.

If a similar situation occurs in your group, talk to the people using the inappropriate language. Point out diplomatically that this behavior is unprofessional and offensive to both women and men and that it isn’t appropriate to use it in a business environment. Inform them that such behavior can cause legal problems for the company and for them as individuals. Tell them that if they continue to use street language they will be subject to the same type of disciplinary action as is given for violating other company rules.

Cathy was perplexed. Dennis, one of her team members, had gone out a few times with Diane, who worked in another department. It never developed into a romance, but Diane kept bugging Dennis to go out with her again. Diane came into Dennis’s office several times a day to talk with him, even though Dennis didn’t welcome her visits. Diane’s constant attention interfered with his work, and he wasn’t interested in seeing her. The next time Diane visited Dennis, Cathy called her aside and told her that social visits were not permissible. Diane never returned, but continued to harass Dennis by telephoning him after work.

Is the company off the hook? Not yet. Even though the harassment has ceased on the job, because both Dennis and Diane are employed by the same company, the company has an obligation to stop Diane from bothering Dennis. Cathy should discuss the situation with Diane’s manager and, if necessary, with the human resources department. If Diane continues her harassment, appropriate disciplinary action should be taken.

Dating isn’t always unwelcome. Many romances that start on the job develop into marriages. What effect does it have on your group when two associates become romantically involved? This situation can be a delicate one. Some companies, fearing that closely related people working together will lead to complications, actually prohibit parents, children, siblings, and spouses from working in the same department or even in positions in which they must interrelate.

Federal law doesn’t expressly prohibit discrimination based on marital status, but it is barred by interpretations of the sex-discrimination clauses by the EEOC. Some states do have specific laws prohibiting discrimination based on marital status. However, companies may still prohibit married couples from working together—but even this is currently being challenged in the courts. If a company prohibits married couples from working together and two team members marry, which one should leave the team? Some companies base their policy on rank (the lower-ranking spouse leaves) or salary (the lower-paid spouse leaves). However, because it might be more likely for the man to be the higher-ranked or higher-paid employee, this policy discriminates against women. The best way to deal with it is to let the couple make the determination about which one will leave.

Suppose a salesperson who comes into your office makes a point of telling off-color jokes to the women who work there. Some of them think he’s hilarious, but you notice the look of disgust on the faces of others. Although no complaints have been made, you see that the behavior is creating an offensive work environment. The salesperson doesn’t work for your company, but you still have an obligation to do something about it.

The courts have ruled that an employer is responsible for the offensive behavior of all its employees (regardless of whether they’re in management). This covers even nonemployees when the employer or its agents (that’s you, in this case) know about it or should have known about it.

Speak to the person on whom that sales rep calls. Tell him or her to discuss the matter with the sales rep. If the undesirable behavior continues, the company has an obligation to tell the salesperson that it cannot continue doing business with him.

Note that your company is responsible not only when it knows about the offensive behavior but also when it should have known about it. This point is a delicate one. How are you supposed to know about everything that might happen? You can’t, of course—but if you’re observant, you should know a great deal about what transpires.

It’s not always easy to understand the implications of the laws and sometimes it’s best to consult an attorney for legal interpretations. However, by following these ten guidelines, you can reduce your chances of having sexual harassment charges filed against your company. You also will improve the morale in the company because employees will see that you take this situation seriously.

The law requires companies to make reasonable accommodation for an employee’s religious practices unless it results in undue hardship on your company. Here we go again. What is “reasonable accommodation” and what is “undue hardship”? These same words were mentioned in discussing the implementation of the ADA (see Chapter 2). You must make an honest effort to accommodate the affected employee as long as it can be done without having a negative effect on your company.

Sometimes accommodation is easy. Suppose your company is open seven days a week and members of your department take turns working on Saturdays and Sundays. Zachary, who is a Seventh Day Adventist, informs you that he can never work on Saturdays but you can schedule him for Sunday work. If you’re not open on Sunday and you have other employees who can work Saturdays, you’re still required to excuse Zachary from Saturday assignments. The other employees might resent having to work on Saturday, but the unhappiness of other employees doesn’t qualify as “undue hardship.”

Large companies have a tough time proving that accommodation causes “undue hardship.” On the other hand, if your business is small and there aren’t enough people qualified in the work to cover the Saturday shift, it might be considered an undue hardship. In that case legally you could have rejected Zachary at the time he applied for the job; if he is already on the payroll, you can terminate his employment.

Although sexual harassment has received most of the attention, there have been numerous cases of employees who have been harassed because of their race or the country from which they came. Unfortunately, there are still a number of people who have strong feelings about members of a race other than their own. Most of the complaints in this area come from employees using the “N” word when talking about or addressing African Americans and blacks. There also have been complaints from members of other groups who have suffered from ethnic slurs.

A recent addition to this problem is the plethora of e-mails and other Internet and intranet messages using derogatory terms and telling stereotypical “jokes” about minority groups. The Wall Street Journal reported an upsurge in e-mail, graffiti, and even notes depicting nooses—a sign of lynching—sent to African American workers. Companies are required to take strong disciplinary action—including firing—against any employee who engages in such practices.

If your employee population consists of men and women who come from different cultures, misunderstandings and conflicts can occur. As a manager, you cannot ignore this situation. Your job is to make your department a smooth-running, collaborative group. It isn’t always easy to change a person’s deeply ingrained perceptions. Newcomers to America must be taught American ways, and Americans must learn to understand the attitudes and customs of newly arrived immigrants.

“How can I supervise these people when they don’t speak English and I don’t know their language?” It’s not a new phenomenon. A hundred or more years ago when immigrants from Europe flooded this country, their supervisors were faced with exactly the same problem. The usual approach then—and it still works—was to find some employees who did speak the language and use them as interpreters. If the non-English speakers in your company are all from the same country, you can make an effort to learn enough of their language for basic communication. Many companies offer English-as-a-second-language (ESL) programs for their employees.

If you’re worried about your non-English-speaking employees’ abilities to understand instruction manuals, it’s not too difficult to have the manuals translated. It also might be beneficial to use nonverbal tools such as demonstrations, training videos, and graphics to train people to perform manual operations. Unless the need to speak English is job related, you cannot require employees to speak only English in the workplace. Employees who normally speak a different language and are more comfortable conversing in their native tongue cannot be forced to speak English among themselves.

Diversity is not limited to integrating persons from other countries into the work force. You also must recognize the other cultures within the American population that must be accommodated. We’ve noted that to discriminate against the physically and mentally challenged is illegal, and that such employees often bring talents and skills that are valuable to the company. But because accommodations must sometimes be made to assist these individuals or groups, other workers might resent them. This is another challenge of the diverse workforce.

How should organizations cope with these issues? First, decision makers must learn to accept the reality of diversity. This calls for abandonment of traditional stereotypes about workers—who they are, what they look like, and why they work. Rather than arguing over whether or not to support diversity, direct your energy toward designing work systems that anticipate the varying and unique qualities of a diverse work force. One company with workers from several countries, had all of its work instruction manuals redesigned with easy-to-understand diagrams and cartoons so they could be readily followed by workers with little knowledge of English.

Second, focus on developing more objective methods of personnel selection and appraisal. Instead of depending on the traditional interviews in selecting staff, which often perpetuate biases, use methods that test the applicant’s ability to actually do the work. Persons applying for jobs calling for manual skills can be asked to actually perform tasks similar to that for which they will be hired. Persons applying for jobs calling for interaction with others may be asked to role play simulated situations. Such techniques can serve two purposes: