Room For Improvement

By Megan Pellegrini

Processors have largely stayed out of the headlines for sexual-harassment complaints, but retaliation claims are rising, and the industry needs to make the issue a priority.

In November, roughly 1,000 Smithfield Foods employees walked out of the Tar Heel, N.C., pork processing plant, with 300 remaining behind to picket. Primarily they were protesting inappropriate firings of alleged illegal employees, but they also charged management with 12 years of inaction on sexual harassment complaints and denial of workers compensation.
No company wants to be the poster child for the proverbial federal case. And in recent years, meat and poultry processors have largely stayed out of the headlines for sexual-harassment complaints, while some still battle racial- and gender-discrimination suits. However, employee-retaliation claims are on the rise, troubling employment law attorneys. They caution processors to continue to quickly and effectively address sexual-harassment complaints, instilling thorough, frequent and interactive training workshops, and embracing best practices at all levels of management.
In 2002, sexual-harassment charges dropped below 15,000 per year for the first time in seven years. These complaints steadily decreased for the next three years from 14,396 to 12,679 in 2005, according to the U.S. Equal Employment Opportunity Commission (EEOC) and state and local Fair Employment Practices agencies. Human-resources trainers see some cause for celebration in this drop in claims. Not only is the number of claims going down, but the ratio of harassment amongst employees is consequently decreasing as the workforce grows.
“Employers are doing the right thing, and it’s working,” says Ann Kiernan, attorney and trainer for Fair Measures, based in New Brunswick, N.J. “After 40 years of generational change, the idea has taken, and we see a societal change away from discriminatory attitudes.”
Harassment: By the numbers 2000 2001 2002 2003 2004 2005
Receipts15,836 15,475 14,39613,56613,13612,679
% of Charges Filed by Males13.6% 13.7%14.9%14.7%15.1%14.3%
Resolutions by Monetary Benefits (millions)$54.6$53.0$50.3$50.0$37.1$47.9
Retaliation charges (Title VII only)19,75320,40720,81420,61520,24019,429
Most companies have zero-tolerance policies and conduct training and workshops on preventing harassment due to race, gender, religion, national origin, age and disabilities. In addition, due to these policies, employees may feel supported by management to report abuse, organizations are not retaliating against complaints and managers may be taking care of complaints early so they don’t turn “from a mole hill into a mountain,” says Jennifer Ann Drobac, attorney and associate professor of sexual harassment law at Indiana University School of Law-Indianapolis. “If companies don’t deal with the problem or it’s ambiguous or hard to prove, then they may wind up in court,” she says.  
A more negative explanation for the drop in complaints is that the current political and social climate doesn’t favor sexual-harassment plaintiffs, so individuals don’t report harassment, notes Mallary Tytel, president and founder of Healthy Workplaces, a human-resources company, based in Sioux Falls, S.D. According to Theresa Beiner’s 2005 “Gender Myths v. Working Realities: Using Social Science to Reformulate Sexual Harassment Law,” upper level judicial bias against Title VII (of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin) exists, which results in cases being dropped before they reach juries.
And while the number of complaints overall is declining, the number of men reporting harassment has increased to 14.3 percent of cases. Drobac notes that same-sex harassment could be a serious problem in the next few years, particularly as Title VII does not prohibit it. Only the District of Columbia and 12 states have legislation prohibiting employment discrimination based on sexual orientation, along with 100 cities and counties.
Retaliation rears its ugly head
Since 2000, retaliation claims related to Title VII have hovered around 20,000, according to the EEOC, which is twice as high as the amount of claims filed in 1992.
“There is a direct correlation between harassment complaints going down and retaliation claims going up,” says Robert J. Shoop, professor of educational administration, Kansas State University. “If someone complains, and his or her life is made miserable afterward, then others are not going to come forward. That only adds to an atmosphere of fear and retaliation. Employees will just leave, instead.”
Retaliation claims are difficult to defend because the accuser does not even have to prove the underlying offense, notes Randal S. White, employment law and civil litigation attorney for Atlantic City, N.J.-based Fox Rothschild LLP, which works with many meat and poultry companies. In other words, the accuser does not have to prove that he or she was actually the victim of sexual harassment, but only that he or she made a complaint of such harassment and then was retaliated against for making the complaint. And, retaliation can take many forms, both subtle and overt.
“The most obvious form is employment termination,” White says. “But lately we are seeing a lot of cases involving much more subtle forms of alleged retaliation, such as a supervisor assigning less lucrative or less interesting work assignments.”
Last summer, the Supreme Court ruled in employees’ favor and expanded employers’ liability for retaliation claims in Northern & Santa Fe Railway Co. v. White. The ruling basically stated that any action from the employer that could objectively be considered to deter an employee from making or helping make a charge of discrimination will be considered retaliation, notes Kiernan.
White says that an effective, written sexual-harassment policy must have a strong anti-retaliation component. In addition, when conducting workplace investigations into unlawful harassment, the investigator has to make it clear -- preferably in writing -- that retaliation in any form will not be tolerated. Alleged victims should be advised that if they believe they are the victim of retaliation for making a complaint, management must be notified immediately.
“Management, particularly the human-resources department, really has to keep a close eye on the situation. And if there is even a whiff of retaliation in the air, take swift action to avoid any claims for retaliation,” says White.
When a hostile environment is allowed to continue, the company suffers from employees’ lost productivity due to poor morale and increased sick days, for example.
What works
Employers’ money is better spent implementing a comprehensive system of zero tolerance to avoid sexual-harassment claims and stay out of the courtroom, White says. This strategy includes having, publishing and using an effective sexual-harassment policy. The policy should identify what sexual harassment is and provide a clear and effective way for employees to let management know when they believe they are the victim of discriminatory harassment.
“In this day and age, any employer without an employee handbook that addresses unlawful harassment is a walking time-bomb,” he says. “Such policies are meaningless, however, unless the workforce has been trained in how to deal with sexual harassment.”
According to Tytel, even victims have a responsibility to report abuse and take additional steps if not satisfied with their supervisors’ response.
Training should be required for rank-and-file employees as well as management, with an emphasis on what to do when an employee makes a complaint, says White. Some states, such as Maine, Connecticut and California, even have mandatory training requirements. Once a complaint is made known, management has a duty to perform a prompt and thorough investigation of the matter and take whatever steps are necessary to see that any inappropriate conduct stops.
Many human-resources trainers emphasize that training should include interactive role-playing and examples of sexual harassment in all areas of the company, so employees can relate more to other personnel.
“If done right in small enough groups with examples they can relate to, role-playing can broaden people’s cultural awareness,” says Drobac. “Shoving policy in their faces is not pertinent. As a trainer, I don’t need them to change their minds — it’s a free country — but change their behavior in the workplace as to what’s legal.”
Shoop notes it’s important for all employees to understand their intent is irrelevant; the impact on employees is what matters.
“They may not be bad people. But if they don’t know the workplace policy before acting, they are risking termination and a lawsuit against the company,” he says.
Creating strong policy
At Coleman Natural Foods, the corporate human-resources department has created a strongly worded sexual-harassment policy, which includes details on how employees can report issues and ensures an environment free of harassment.
“We don’t tolerate sexual harassment from any of our employees, including customers, clients and vendors,” says Cammie Redpath, director of human resources for the Golden, Colo.-based processor. “And we have become more and more progressive over the last few years.”
It is management’s responsibility to guarantee that all employees are familiar with the policy and to immediately investigate any behavior that is not in compliance with Coleman’s policy. Complaints are treated in confidence as much as possible, so employees feel comfortable coming forth with complaints and assisting in investigations.
“We don’t want employees to resolve incidents on their own,” says Redpath. “We’ve had a great deal of success dealing with issues internally.”
Moreover, Coleman will always take action if behavior violates its policy, up to and including termination depending on the severity of the situation. In particular, the policy notes that employees will be held financially liable for any harassment damages incurred against them.
Every new employee reviews the policy and signs a statement stating that he or she understands any harassment or misconduct will be disciplined up to termination.
Each year, Coleman partners with an outside law firm and provides interactive and situational training to junior and senior managers and supervisors on topics such as how to prevent claims from arising, appropriately respond to situations and interpret the latest employment laws. Redpath notes that human-resources managers and executive managers spend a great amount of time in plants to assess the environment and guarantee a strong line of communication, so individuals feel comfortable coming to them with problems.
“In the end, it’s important for companies to be aggressive and progressive in harassment issues,” says Redpath. “The success of a company relies on the success of its employees. It is critical that more work be conducted on the front end to ensure a positive environment. All companies should have this as their top priority.”