Professional Liability/ Risk Management Brief: Sexual Harassment
During strong economic times, professional service firms often
develop a sense of teamwork and a mission that obscures many of a firm’s legal
responsibilities to its employees. When the pace of business diminishes,
however, employees sometimes refocus on their working conditions, opportunities
for advancement, and issues that affect an employee on a personal level.
One of the areas of growing risk for construction-related
professional service firms is claims of inequality in pay, status, and
stability that are based on charges of sexual harassment. Sexual harassment is
defined as “any unwelcome sexual conduct that is a term or condition of
employment or that creates an intimidating, hostile, or offensive work
environment.” The legal basis of this is Title VII of the Civil Rights Act of
1964, which imposes a duty on employers to maintain a workplace free from
discriminatory ridicule and insult. Sexual harassment claims based on alleged
actions by coworkers and supervisors have become common.
United States Supreme Court decisions have made employers subject
to vicarious liability for unlawful harassment of employees by supervisors. The
court holds that an employer is always liable for a supervisor’s harassment if
it culminates in a tangible employment action. With quid pro quo sexual
harassment—when submission to sexual conduct is explicitly or implicitly a term
or condition of an individual’s employment—employers are strictly liable for
the unlawful conduct.
Any employment action qualifies as “tangible” if it results in a
significant change in employment status. An individual qualifies as an
employee’s supervisor if: the individual has authority to undertake or
recommend tangible employment decisions affecting the employee or has authority
to direct the employee’s daily work activities. The question of liability
arises only after there is a determination that unlawful harassment occurred.
Employer liability also exists in “hostile work environment”
cases. If the plaintiff shows that he or she belongs to a protected class, was
subject to unwelcome sexual harassment based on the plaintiff’s sex that was so
severe and pervasive that it altered the employment conditions, and that the
employer knew or should have known of the harassment and failed to take proper
remedial action, the employer will be held liable. Federal law does not
prohibit simple teasing, offhand comments or isolated incidents that are not
“extremely serious.” Instead, the conduct must be “so objectively offensive as
to alter the ‘conditions’ of the victim’s employment.”
The employer may avoid liability or limit damages by showing that
it exercised reasonable care to prevent and promptly correct harassing
behavior. To adequately prevent sexual harassment, a firm should have an
effective training program that educates employees about their rights and the
employer’s commitment to a harassment-free working environment. The firm can
escape liability if the employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the firm.
In order to prevent and correct harassment, firms should implement
a written enforcement procedure that encourages employees to report harassment
to management before it becomes severe or pervasive. Moreover, the employer
should assure employees that it will protect the confidentiality of harassment
complaints to the highest extent possible. This policy should state that the
employer will not tolerate retaliation against anyone who complains of
harassment or who participates in an investigation. Smaller businesses may be
able to discharge their responsibilities through a less formal exchange. If an
employer maintains regular contact with all employees, this complaint procedure
information can be verbally disseminated at staff meetings.
small-business owners may soon face a multitude of new employee health plan
requirements. Until a health insurance exchange program is available to
employers in 2014, many small firms are counting on the “grandfathering” of
their current health plans to maintain their existing health care coverage.
NSPE believes that the grandfathering rules referred to in Docket
OCIIO-991-IFC, titled The Interim Final Rules for Group Health Plans and Health
Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the
Patient Protection and Affordable Care Act, are too restrictive.
Under the rules, a grandfathered plan cannot:
co-payments, deductibles, or out-of-pocket limits;
Make annual limits
more restrictive or add new annual limits;
the share of premiums that employers contribute for their workers in group
annual cost of health care is on the rise, however, and firms cannot always
control their health plan costs. In order to maintain health insurance for
employees, employers often need to work with their insurance carriers to adjust
co-pays and cost-sharing so that they can continue to afford coverage. If
grandfather status is revoked, the burden on some firms may force them to
cancel employee health insurance.
there are limited credits available for small businesses to help offset the
cost of providing insurance, the credits dwindle if a firm has more than 10
employees and are completely phased out if the firm has 25 or more employees.
The credits are also phased out for employers with even modest-sized
recommends that until the health insurance exchange program is implemented in
2014, small and medium-sized firms be permitted to make cost-saving changes to
co-payments and cost-sharing and to change insurance carriers, as long as they
do not reduce the per-employee amount they pay for insurance. This would allow
the firms to maintain health plans for employees without placing undue
financial strain on the firms.
NSPE Helps You Meet Your Continuing Education Requirements
kicks off the fall Webinar series on September 23 with Successfully Building
Green in a Bad Economy, then follows that up with the first in the popular
Ethics Forum series, Key Issues in the Aftermath of the Gulf Oil Spill, on
NSPE’s fall Webinar schedule on the web. Don’t miss out.
Sign up online today. The member price is $99 per site. Get a group of your
colleagues together in the conference room, and all of you can participate and
receive credit for the one low price of $99. The more people you have in the
room, the cheaper the price per person! Don’t forget to login to the Web site
before you purchase to receive the member price.
Company Earns Prestigious Award for Mentoring Culture and In-House University
R. Green Co. was recently awarded the Professional Development Award by the
National Society of Professional Engineers’ Professional Engineers in Private
Practice. The award was officially presented during NSPE's annual conference
July 15–18, 2010, in Orlando.
PEPP Professional Development Award is presented to employers that exhibit
exceptional career development initiatives and have made outstanding
contributions to the advancement and improvement of the engineering profession
through its employment policies and practices. The purpose of the award is to
recognize those firms with the best engineering employment practices, and to
encourage all firms to adopt progressive policies and practices.
R. Green Co., an engineering and architectural firm based in Cedar Rapids, Iowa,
enhances their business through the development of progressive people programs.
These programs include its in-house Green
formal mentoring programs, and active career development planning processes.
The internal training program, Green
University, has a number
of specialized curricula designed to provide job-specific and technical
knowledge that enhances the ability of its employees to better perform their
jobs and expand personal expertise. A broad array of courses in four
educational tracks—interpersonal skills, project management, business
development, and technical curricula—are offered, along with a particular focus
on developing future and emerging leadership within the firm. Some 1,450 hours
of training were delivered to staff last year by in-house experts.
in 1913, Howard R. Green Co. is a professional services firm with nearly 400
employees offering planning, engineering, transportation, community resources,
water/wastewater, construction, environmental, buildings, technology, and renewable
energy services to clients in diverse markets. The firm operates 13 offices
located in six states and moved up more than 150 places to 205 on the 2010
edition of ENR's Top 500 Design Firms.
selection for the national award is made by the PEPP Awards Committee on the
basis of both current and longtime reputation of the organizations under
consideration, with particular emphasis on the preceding twelve months.
Criteria for the judging of the award includes engineering personnel/licensure
information, recruitment, employment, professional development, and special
employment practices. Nominations for the award must be originated by local
chapters or practice divisions of an NSPE-affiliated state society and are due
by March 1.
PEPP Staff Kim Granados, CAE
1420 King Street
Alexandria, VA 22314
For more information or to contact us directly, please visit www.nspe.org.
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