If you're the owner or tenant of a commercial building, you should know something: Your Building or Personal Property protection might become void if the property is left vacant.
Over the years, the vacancy clause in many Property policies has been modified to better reflect the increased hazard a vacant building represents. Under the terms of the policy, a vacant commercial building isn't covered for certain perils and is only partially covered for others.
These perils, which are very likely to happen to vacant property, won't be covered:
- Vandalism
- Sprinkler leakage (unless the sprinklers were properly adjusted to prevent freezing )
- Glass breakage
- Water damage
- Theft and attempted theft
Other losses may get you reimbursed at 15% less than you would have received had the building been occupied.
"Vacant" for a tenant means that there's not enough business personal property in the tenant's space to conduct customary operations. For an owner, the building is considered vacant when 70% of it isn't rented or used for customary operations. While under construction or renovation, the space isn't considered vacant.
If your policy is based on the current Insurance Service Office (ISO) form, coverage for the building you own won't be denied until it has been vacant for more than 60 consecutive days before the loss. For tenants, this is true of the leased area rather than the entire building.
Commercial insurance policies are complex contracts designed to meet the needs of the typical tenant or building owner operating under typical circumstances. Vacancy of more than 60 days is not a typical situation, which is why coverage is restricted - unless you take steps to extend your insurance via an endorsement or another policy.
So be warned: If your space will be vacant for more than 60 days, call us so we can rework your coverage.
DISHONEST EMPLOYEES: All It Takes Is One
from imms.com
Small businesses can be
more vulnerable to embezzlement than large companies
because small-business employers tend to have closer, more
trusting
relationships with their workers (who are sometimes also
friends
or relatives). Small businesses also tend to have fewer
controls
and more informal bookkeeping procedures.
The best way to maintain good relations with
your
employees and protect yourself against embezzlement is to have
controls
in place - and to let your employees know that the books will
be
audited regularly. The friendships can begin once these ground
rules
are clear:
- Keep recording and money handling separate by having
different
employees handle each task, perhaps doing one of them
yourself.
- Keep accurate records. A good computer program is a great
help
in keeping information current, but remember that technology
can
complicate the system. More than one person should
understand
what's going on. The businessowner should know the system
backward
and forward. Passwords should be used, changed regularly,
and
known only by the people you designate.
- Insist that your accounting employees take vacations.
It's
a red flag when money-handling and bookkeeping employees are
reluctant
to take time off from the books, even when it looks as
though
they're just being conscientious.
- Monitor the books regularly and let your employees know
you'll
be doing it. A lazy or distracted businessowner invites
embezzlement.
- Double-sign checks. If you allow the bookkeeper to sign
checks,
also require your own signature or that of another
principal.
The safest method of all, especially for a very small
business,
may be to have only one signature: yours. The bookkeeper can
make
out the checks and send them to you for signing.
- Show yourself to be honest. Set the standard for honest
dealings
with your employees, suppliers, and customers, and your
employees
may follow your lead.
AGENTS FOR CHANGE:
WE CAN MAKE THE WORKPLACE SAFER
by Arthur Moll
More agent involvement in safety programs
can be the single
most important way to reduce accidents in the workplace.
Small companiesthose with 50
employees or
fewernow make up 95% of all American businesses. Many are so
focused on getting the
product out the door and meeting bottom-line objectives that they
dont have the time
or resources to develop safety programs. Insurance agents can be the
safety and
loss-control managers for these employers.
Establishing the agent for this proactive
role requires a
change in our thinking, but the rewards can be unlimited. The agent is
close to the
employer and sees him or her regularlyand thus can provide a fresh
pair of eyes to
identify hazards. Thats only the beginning. I encourage a more
hands-on approach to
safety. Agents can make a real difference by helping the employer
establish safety
committees.
Why is this important? Studies show that
90% of all
accidents are caused by employees rather than by faulty equipment or
conditions. Turning
over the responsibility for safety and accident prevention to employees,
through safety
committees, is the only sure-fire way to achieve lasting
results.
Through my experience, I am more
convinced than ever that
the only successful approach to safety is to implement an
employee-centered program. The
agent can be the catalyst who makes this happen.
The employee safety committee needs
direction from an
outside, independent coordinator, and should be made up of
nonsupervisory personnel. The
people closest to a problem are best able to find practical,
cost-effective solutions.
Managers sometimes believe that employees
lack the
sophistication necessary to develop solutions. However, the safety
committees I have
worked with have produced excellent results. Indeed, workers such as
assemblers, sweepers,
maintenance people, sales clerks, stock clerks, and cashiers are
valuable assets for
identifying unsafe conditions and making recommendations that improve
productivity and
quality.
One of my industrial clients told me that
communication
with the work force had greatly improved since the start of the employee
safety program.
I approach safety in an orthodox way.
Approximately eight
employees meet once a month for an hour. We review accident reports to
pinpoint the
accidents causes, and make recommendations for corrective action.
We walk around the
facility on an inspection tour identifying hazards. During the tour, we
solicit
employees views and suggestions about safety.
For example, employees were having
difficulty continually
transferring boxes containing 40 pounds of chocolates from the
production line to a
staging area. There was no room to install a conveyor. Someone on the
committee suggested
getting plastic buckets to transport 20 pounds of product, thereby
halving the weight
load. A simple solution, but who in management would have thought of
it?
Another powerful reason for agents to
become involved in
safety committees is that they can influence management action. For
example, who would
believe that a department store could be fraught with hazards? Greater
emphasis is placed
on generating sales than on the safe operation of the stock areas. With
their broken
ladders, cramped space, improper shelving, poor lighting and other
hazards, stockrooms are
often accidents waiting to happen. I explained to management that a back
injury can cost
$20,000 and asked, "How many new ladders can be bought for
$20,000?" They
listened and acted.
As the spotlight on workplace safety
intensifies, several
state legislatures have created mandatory safety programs for employers
that have adverse
experience. My fear is that some employers will take the path of least
resistance and give
lip service to implement a program, along with a fancy safety handbook
that just gathers
dust. This approach will yield few or no long-term results. Paper
programs and written
missives have never worked.
Management support is by far the most
important element of
a successful workplace safety program. Without a genuine commitment from
management to do
whats necessary to prevent accidents, the best program is doomed
to failure.
Management must also ensure 100% employee involvement or the program
will not be
effective.
Safety and accident prevention have to be
an integral part
of what I call the "magic triangle" of any enterprise:
production, quality, and
safety. I believe that theyre interrelated. Without a strong
safety component,
productivity, quality, and certainly profitability will suffer.
Therefore, we must
integrate safety into the hiring, orientation, and training
processes.
In todays environment, safety can
no longer be
considered a staff function with only safety professionals responsible
for results. In
smaller enterprises, the agent can become a major influence in molding
these elements
together.
The effort should be made not just for
the sake of safety,
but to improve morale. For instance, a sanitary district had special
trucks to pick up
heavy items, such as refrigerators and washing machines, but did not
supply its workers
with hand trucks. The workers had to move heavy items manually from the
curb to the
trucknot a safe environment. The employees thought I was a
"miracle man"
when the districts commissioners followed the recommendation of
the safety committee
and purchased hand trucks. When safety is employee-driven and the
results are evident, all
employees see the improved conditions and realize that management is
committed to
providing a safe workplace for them.
How can we spread the word that safety
affects a
business bottom line? Id like to try an experimental seminar
program, geared
toward the smaller employer. It could be an after-work program, in which
many agents would
bring their clients to a central location. We could have presentations
by safety experts,
the state labor department, companies, OSHA, AFL-CIO, and so on, and
show financial data
that demonstrates what happens when a safety program is implemented (or
what it costs when
safety is ignored).
A two-unit department store saved more
than $1,250,000 in
the first two years on their retrospective rating program. A sweater
factory went from
$470,000 in paid claims and reserves for two years prior to the
initiation of a safety
program to only $45,000 after the programs first year. Similar
results were achieved
at a manufacturer of vibration-isolation equipment.
The traditional agents role has
been to write the
policy and handle accident reports. I believe that agents can become
proactive
missionaries for safety and loss prevention. Imagine, we could have
20,000 missionaries
preaching that the "the cheapest accident is the one that never
happens." Think
of the possibilities!
Arthur I. Moll, CPCU,
CIC, is president
of the National Association of Professional Insurance Agents (Pia) and
president of
Compaudit Services, a firm that helps companies reduce Workers Comp
costs. Hes also
a professional member of the American Society of Safety
Engineers.
BACK
INJURIES:
THE NATIONS NO. 1 WORKPLACE SAFETY PROBLEM
by Bill
Grieb
The winner in the competition for worst
workplace safety
problem goes to back injuries. Preventing back injuries is thus a major
workplace safety
challenge.
Back injuries account for one in every
five workplace
injuries or illnesses, according to the Bureau of Labor Statistics
(BLS). Whats
more, one-fourth of all compensation indemnity claims involve back
injuries, costing
industry billions of dollars on top of the pain and suffering borne by
employees.
Although lifting, placing, carrying,
holding, and lowering
are involved in the manual handling of materials (the principal cause of
compensable work
injuries), the BLS survey shows that four in five of these injuries were
to the lower
back, and that three in four occurred while the employee was
lifting.
No approach (other than pure laziness)
has been found for
totally eliminating back injuries caused by lifting, but a substantial
portion can be
prevented by an effective control program and ergonomic design of work
tasks.
In a recent study, it was determined that
up to one-third
of compensable back injuries could have been prevented by better job
design (ergonomics).
Other factors affecting injury rates include frequency of lifting,
duration of lifting
activities, type of lifting, age, sex, body size, state of health, and
general physical
fitness.
OSHA is considering ways to help
employers and employees
reduce these injuries, looking at both administrative controls and
engineering controls.
The former includes carefully selecting and training workers so they can
safely perform
lifting tasks. Engineering controls attempt to redesign a job so lifting
becomes less
hazardous. Recommended approaches include the NIOSH WORK PRACTICES GUIDE
FOR MANUAL
LIFTING, which employs an equation using horizontal location, vertical
location, vertical
travel distance, and lifting frequency (see below).
Another approach would set a maximum
weight limit for any
single lift, or a load-moment limit based on the distance of the load
from the
workers body. Tables of maximum weights for different percentiles
of male and female
workers have also been proposed.
Administrative controls include:
- Strength testing of existing workers
(discouraging the
assignment of workers to jobs that exceed their strength
capabilities), which one study
showed can prevent up to one-third of work-related injuries
- Training employees to utilize lifting
techniques that place
minimum stress on the lower back Physical conditioning or stretching
programs to reduce
the risk of muscle strain
- Engineering controls include:
- A reduction in the size or weight of
the object lifted. The
parameters include maximum allowable weights for a given set of task
requirements, the
compactness of a package, the presence of handles, and the stability
of the package being
handled.
- Adjusting the height of a pallet or
shelf. Lifting that
occurs below knee height or above shoulder height is more strenuous
than lifting between
these limits. Obstructions that prevent a bodys contact with
the object being lifted
also generally increase the risk of injury.
- Installation of mechanical aids such
as pneumatic lifts,
conveyers, or automated materials-handling equipment.
Back injuries are more often the result of chronic injury than one
specific incidence.
Causes may include twisting at the waist, lifting with straight
legs, repetitive bending
and reaching, awkward postures, heavy objects below the knees or
above the shoulders, and
excessively heavy objects. These are other factors:
PERSONAL FACTORS
- Skill and knowledge
- Lifestyle practices
- Age and experience
- Pre-existing conditions
- Physical fitness
- Fatigue
- Mental preparedness
- Stress: physical, mental, emotional
WORKPLACE FACTORS
- Job tasks
- Staffing levels
- Work schedule
- Equipment
- Safety training
- Lack of safety budget
- No fitness programs
- Health culture/environment
ENVIRONMENTAL FACTORS
- Exposure: cold weather, heat, etc.
ERGONOMIC FACTORS
- Duration of work
- Awkwardness
- Hard forces
- Vibration
- Contact stress: using hand as hammer,
kicking, etc.
- Control over pace
SOLUTIONS
- Skill development
- Lifestyle alterations
- Local program support
- Wellness programs
- Safety programs
- Modification of facilities and
equipment
NIOSH WORK PRACTICES GUIDE FOR MANUAL LIFTING
NIOSH (National Institute for Occupational Safety and Health) offers
the NIOSH WORK
PRACTICES GUIDE FOR MANUAL LIFTING (NTIS PB (821) 789-48, cost
$17.50) from The National
Technical Information Service, 5285 Port Royal Road, Springfield, VA
22161.
Here are some of its guidelines:
Lifting Boundaries
"Below the Action Limit." This term represents nominal
risk to most industrial
work forces. More than 99% of male workers and 75% of female workers
can lift loads up to
the Action Limit. Lifting in this range is acceptable.
"Between the Action Limit and the Maximum Permissible Limit
(MPL)." When
exceeding the Action Limit, compression forces on the lower back are
more than 770 pounds,
which most young and healthy workers may tolerate. Administrative
controls or engineering
controls are required.
"Above the Maximum Permissible Limit." When exceeding the
Maximum Permissible
Limit, compression forces on the lower back exceed 1,430 pounds.
Only 25% of male workers
and 1% of female workers can perform at this level. Both
administrative and engineering
controls are required for lifting in this region.
Calculations
Action Limit (AL) in pounds is algebraically represented by:
AL (#lb) = 90 (6/H)(1-0.01|V - 30|) (0.7 + 3/D) (1-F/Fmax)
where:
H = Horizontal location (in inches) forward of midpoint between
ankles at origin of lift
V = Vertical location (inches) at origin of lift
D = Vertical travel distance (inches) between origin and destination
of lift
Fmax = Average frequency that can be sustained
MPL = 3 x AL
For the purpose of this guideline, these variables are assumed to
have the following
limits:
- H is between 6 inches and 32 inches.
Objects cannot, in
general, be closer than 6 inches without interference with the body.
Objects further than
32 inches cannot be reached by many people.
- V is assumed between 0 and 70 inches,
the range of vertical
reach for most people.
- D is assumed between 10 inches and (80
- V) inches. For
travel less than 10 inches, set D =10.
- F is assumed between 0.2 (one lift
every 5 minutes) and
Fmax. For lifting less frequently than once per 5 minutes, set F =
0.
Application of the NIOSH guide to lifting tasks assumes the
following:
- Lifting tasks is two-handed, smooth,
and in front of the
body, with moderate-width loads and unrestricted lifting postures.
Moderate-width loads
are those that do not substantially exceed the body width of the
lifter.
- No twisting occurs during lift.
- There is a minimal amount of other
manual material handling,
such as pushing, pulling, carrying, and holding.
- One-hand lifts are not evaluated with
this approach.
- Temperatures outside the 60- to
70-degree range (F) may
increase risk of injury.
The computed values of the Action Limit and Maximum Permissible
Limit are used by the CSHO
as a guide to estimating risk. The numbers by themselves do not
identify a hazardous
activity. The employers incidence of injuries and development
or lack of programs
for training, work-practice controls, and engineering controls are
elements used to
determine the seriousness of the hazard.
Reprinted with permission from Safety
Information
Currents, Volume V, Number 4.
EMPLOYEE
MOTIVATION
by Bill Grieb
Most workplace accidents occur in
"safe"
workplaces, because of employee error.
What can you do? The answer is employee
motivation.
This article tells you how to develop and
implement an
employee-motivation program. All the effort will be worthwhile if only
one accident is
averted.
Employee Motivation
Sometimes injuries are caused by a lack
of appropriate
safety equipment or unsafe processes and procedures. Workplace safety
laws have been
established to correct these types of problems, but another, perhaps
more pervasive cause
of workplace injury is employee error.
An employee may take unnecessary risks
without a second
thoughteven when the employee had been trained in back safety, had
access to a
safety belt, and had been warned of the risk. The toll might be a
serious back injury.
Why do employees minimize their estimates
of risks? Why do
they ignore dangers?
The injured employees excuses are
both related and
unrelated to their work.
Some job-related excuses
include:
- "Ive picked up bigger boxes
than this before
without hurting myself."
- "Back belts are for
pansies."
- "Im too busy to stop and
get a belt."
In these cases, the employees did at least consider the possible
dangers of lifting and
the use of protective gear. Excuses that arent related to the
job include:
- "Im pissed at my spouse. My
kids are a
pain."
- "How am I going to get my car
fixed? Where will the
money come from?"
- "What should I wear tonight? Do
the Joneses like
asparagus?"
- "I sure need a cigarette.
Whens my break?"
In these examples, the employee was distracted by other concerns.
Firms must develop an
employee motivation program to reduce these dangerous distractions.
The purpose of a
safety program is to help workers understand the importance of your
companys goal of
having no injuries on the job.
The first step in an effective safety motivation program is
marketing. You must instill in
your workers the value of safety, communicating a commitment to
safety and motivating
supervisors and employees to think and act safely.
Rather than emphasizing management and control of responses to
injury or illness, your
business should concentrate on accident prevention and promotion of
safety.
Employee-Motivation Programs
You must sell management on the importance of supporting an
employee-motivation program.
They must commit to costs, promotions, and the total
employee-motivation effort.
While employee motivation programs have been shown to provide one of
the best
saving-to-cost ratios of any activity, the price isnt
negligible. If your program
saves $25,000 on Workers Compensation, a portion of the savings
wont automatically
be diverted toward funding your program. Management must agree to
provide money to
continue the program, the value of which will be a reduction of
costly accidents on the
work site.
Ingrain in your workers the behaviors and priorities of a safe
culture by promoting safety
awareness. Remember, the rate of return for an effective safety
program can be $4 to $10
for every dollar invested.
You need to:
- Set goals
- Reward success
Acknowledge failures
Provide Training
Employee motivation job isnt complete until the paperwork is done.
Training must
include program evaluation and trainee feedback. Supervisors and
employees alike should be
trained.
Pass some of the savings on to employees.
A variety of motivation programs are based on such incentives as
rewards, contests, and
premiums. The key is to publicize rewards. Lottery tickets, selected
gifts, savings bonds,
and cash have all been used as effective rewards. But none of these will
be effective
without the basic structure of a Workplace Safety Program.
Absenteeism
The average employee took seven unscheduled absences in 1995, compared
to six in 1992. Of
these, half are for personal illness and one fourth for family issues.
The remainder were
for reasons such as stress and feeling entitled to use the days off.
Companies have different ways of handling this problem: Some reward
employees for sick
days not taken, while others lump together vacation, sick, and personal
leave days. The
goal is to motivate employees to schedule days off in advance, so that
the company can
plan around their absence.
Happy Workers
Studies show that attitude is one of the most important factors
contributing to Workers
Compensation and health care costs of employees. A study of 3,000 Boeing
employees found a
strong association between back-injury reports and work perceptions.
Those who
"hardly ever enjoyed their work" were twice as likely to file
a Workers
Compensation claim as those who "almost always enjoyed their
work."
A study of telephone operators found that job-related injuries increased
when such
psychological factors as worries about job security existedeven
when the employer
took every precaution to protect the workers. A study at Steelcase found
that dissatisfied
workers were 43% more likely to have a high number of medical claims
than satisfied
workers. The implications are obvious: Safety and health programs must
be integrated into
the corporate culture. If these programs are part of a corporate
mentality that
appreciates the employees, they will succeed. Treatment of employees
affects not only the
number of Workers Compensation claims filed, but also how quickly
employees return to work
after an injury.
Incentive Programs
A safety incentive program can augment a workplace safety program. It
will not take the
place of an effective incentive program. The program should highlight
and reinforce goals,
not be vague and general. For example, references to "no recordable
accidents"
may lead to hiding or not reporting minor injuries, and failing to
correct
problemsall of which may result in future major accidents.
Some organizations use a percentage of Workers Compensation savings to
fund incentive
programs. Rewards vary from catalog items, first aid kits and other
safety items to
lottery tickets, cash, and plaques. Your safety committee can define the
program and
rewards, since it will include workers and supervisors as members. The
program should be
clear, achievable, measurable, and easily communicated. Its duration and
who is covered
should be specified in writing, as should its budget.
This article was reprinted with permission from Safety Information
Currents, which is
published by System Interface Consultants in Santa Monica, CA, at (310)
454-2100.
DRUG-USE AWARENESS
INCREASES PROFITABILITY IN SMALL FIRMS
WORKING PARTNERS
The Profit in Reassembling Human
Assets
- Small businesses account for close to
50 percent of
private-sector output in the United States and an estimated 39
percent of the Gross
National Product (SBA Report to President, 1992).
- The manufacturing segments
industrious work force,
although frequently small in size, represents its most valuable and
underdeveloped asset.
The manufacturing industry draws its work force from one of the
fastest-growing sectors of
the population, the pool of 18-to 30-year-olds with a high school
education. This group
also exhibits the heaviest use of alcohol, cocaine, marijuana, and
heroin (NIDA, 1991). By
joining or investing in support programs that help their workers
prevent or overcome
substance abuse problems, large and small manufacturers help
themselves maintain a
competitive edge in the dynamic world market.
- Award-winning manufacturers recognized
by INC. magazine as
star performers are also leading the way in giving special attention
to employees through
worker support programs. This attention pays off by improving worker
morale, and retaining
the profit otherwise lost in nearly 1 million drug-related
industrial accidents (Karol,
1991).
- This finding supports the conclusions
of a recent survey
showing impact on job performance as the primary motivation for
having a substance abuse
policy. The Small Business Administration estimates that every
dollar invested in an
employee assistance program saves $16 in productivity by reducing
health care costs
(Moore, 1992).
- A study by the Project for Substance
Abuse Assistance - a
coalition of Printing Industries of America, Graphic Arts Employers
of America, the
American Newspaper Publishers Association and the Graphic
Communications International
Union - found that more than one-half of respondents co-workers with
substance abuse
problems should be helped and given the time to recover.
Overwhelmingly, respondents said
that "more information on alcohol and drug problems" would
be the most helpful
way to assist co-workers (PIA, 1990).
What Working Partners Can Do For You
The U.S. Department of Labors Working Partners Initiative has
been developed
specifically to help manufacturing industry supporters deliver
helpful information to the
small businesses that depend on their support. This package contains
the benefits of
research on the manufacturing industry to discover the hidden
assets, the problems, and
the solutions that successful entrepreneurs in your industry have
developed to protect and
promote their businesses.
Reference List
U.S. Small Business Administration, The State of Small Business: A
Report to the
President, Washington DC,: U.S. GPO, 1992.
National Institute on Drug Abuse. National Household Survey on Drug
Abuse: Main Findings,
1990, DHHS: 1991.
Karol, Michael, ed. "The Lows of Being High," Graphics
Arts Monthly (September,
1990):101.
Moore, Wendell R., The U.S. Department of Labor, U.S. Small Business
Administration &
the Office of National Drug Control Policy, Working Partners
National Conference
Proceedings Report. Washington DC: U.S. GPO, July 13-14, 1992,
65-66.
Printing Industries of America,Inc. "Industry Substance Abuse
Concerns
Highlighted," Human Resources (March 1990).
RECENT SEXUAL
HARASSMENT DECISIONS:
NEW RISK AND NEW DEFENSES
by Francis
Willmarth
The federal Equal Employment Opportunity
Commission (EEOC)
recently announced that in the 1990s, sexual harassment, disability, and
retaliation
claims have increased substantially, while age- and race-based claims
have declined. In
the years since 1991, when Anita Hill testified against Clarence Thomas,
sexual harassment
claims have doubled, and payouts to claimants have increased
sevenfold.
During the past six months, there have
been three U.S.
Supreme Court cases applying Title VII of the federal Civil Rights Act
of 1964 to sexual
harassment, as well as state law activity in the California Supreme
Court. Although the
cases have broadened employer liability for sexual harassment by
supervisors, they have
also created a new defense for employers with proper programs to
eliminate sexual
harassment. These programs may create a win-win opportunity for employer
and employees
both because they may reduce harassment in the workplace and provide a
defense for
properly prepared employers when claims do arise.
Exposure to Liability for Sexual
Harassment
Title VII of the Civil Rights Act of 1964
does not speak of
sexual harassment, but simply forbids employment discrimination because
of sex. However,
the courts have held that two forms of sexual harassment violate Title
VII. One form,
referred to as "quid pro quo," involves demanding sexual
favors in return for
job benefits, threatening retaliation upon refusal, and carrying out
such threats. Another
form is behavior that is sufficiently severe or pervasive so as to alter
the conditions of
employment and create a "hostile work environment," even when
the employee is
not fired, demoted, or similarly harmed. This behavior must be both
objectively and
subjectively offensive: behavior which a reasonable person and the
victim both find
offensive.
The U.S. Supreme Courts recent
decisions have aspects
that favor the employers and the employee victims of sexual harassment.
They expand the
situations in which employers are potentially liable for harassment by
supervisors. On the
other hand, they allow employers who set up and administer proper
programs to avoid
liability while making it less likely that harassment will occur in the
first place.
Expanded Employer Responsibility
The Supreme Courts decisions have
expanded an
employers responsibility for sexual harassment by its supervisors.
It held that if a
supervisor is guilty of using his or her authority for purposes of
sexual harassment, an
employer is vicariously liable for these acts. If the acts result in a
"tangible
employment action" against the employee (dismissal, failure to
promote, or the like),
the employer is strictly liable for it. Even if the employee suffers no
harm, such as
dismissal or demotion, the employer is potentially liable for the
hostile work environment
anyway, unless the employer can establish an affirmative defense: that
it used reasonable
care to prevent and correct the discrimination, and that the employee
unreasonably failed
to take advantage of the corrective opportunities.
The Supreme Court also noted that
"conduct that is not
severe or pervasive enough to create an objectively hostile or abusive
work
environmentan environment that a reasonable person would find
hostile or
abusiveis beyond Title VIIs purview. We have always regarded that
requirement as
crucial, and as sufficient to ensure that courts and juries do not
mistake ordinary
socializing in the workplacesuch as male-on-male horseplay or
intersexual
flirtationfor discriminatory conditions of
employment."
Affirmative Defense for Employer
Finally, the Supreme Court enunciated a
new affirmative
defense that applies to hostile environment cases, but not to quid pro
quo cases in which
the harassment resulted in "a tangible employment action, such as
discharge,
demotion, or undesirable reassignment." It said, "The defense
comprises two
necessary elements: (a) that the employer exercise reasonable care to
prevent and correct
promptly any sexually harassing behavior, and (b) that the plaintiff
employee unreasonably
failed to take advantage of any preventive or corrective opportunities
provided by the
employer or to avoid harm otherwise."
To avoid sexual harassment, as well as to
avoid liability,
employers must have an express policy against sexual harassment of both
women and men. It
would be wise to include harassment for the other reasons forbidden by
Title
VIIrace, national origin, and religionas well as because of
age, disability,
and sexual orientation (which are forbidden in other statutes). This
policy should be
prominently displayed and distributedfor instance, in an employee
manual. Many
employers require employees to sign a statement showing that they
received and read the
policy. Many go further and have formal courses on harassment, complete
with films or
other demonstations of elements that can constitute
harassment.
There should be a procedure for making
complaints that does
not require the complainant to go through the harassing supervisor. The
employer should
investigate the complaints in a fair proceeding in which both sides are
given a chance to
present information favorable to them and rebut evidence provided by the
other side. If
the complaint is justified, the employer should discipline the offending
employee.
Employers Responsibility to
Accused Employee
The recent U.S. Supreme Court decisions
did not deal with
the responsibility of the employer to the accused supervisor. The
employer may find itself
on the horns of a dilemmabeing sued by the accusing employee if it
fails to
discipline the supervisor, and being sued by the supervisor if it does
so.
Californias Supreme Court recently addressed this subject. It was
faced with a large
judgment in favor of a supervisor dismissed for sexual harassment. The
court held that if
the employer shows it reasonably believed that the alleged misconduct
occurred and
otherwise acted fairly, it cant be held liable even if it was
wrong:
"Three factual determinations are
relevant to the
question of employer liability: (1) Did the employer act in good faith
in making the
decision to terminate? (2) did the decision follow an investigation that
was appropriate
under the circumstances? and (3) did the employer have reasonable
grounds for believing
the employee had engaged in the misconduct?"
Programs on Prevention Make
Sense
A number of federal and state civil
rights statutes deal
with harassment. Its not clear to what extent the federal Title
VII decisions will
be applied to other state and federal statutes, nor whether the view of
the California
Supreme Court will be adopted elsewhere. However, the employment
procedures they set forth
make a good deal of common sense. If followed, they will tend to prevent
claims in the
first place, and provide a fair procedure for dealing with them when
they do occur.
Plus Consultant Francis G. Willmarth,
Esq. can be
reached at Las Doradas Branch Office, P.O. Box 830, Pt. Arena, CA 95468,
(707) 882-3878
(phone and fax), E-mail fgw@mcn.org, Web site
http://www.willmarth.com.