A 10-Step Program: Reducing the Likelihood of Sexual Harassment
and the Possibility of Successful Sexual Harassment Lawsuits

Scott F. Uhler and Rinda Y. Allison

If libraries could eliminate sexual harassment entirely, they would. But since that is probably not possible, the next best thing is to reduce harassment as much as possible, which will also reduce the likelihood of success of any claims of sexual harassment brought against a library. There are numerous steps that can be taken to reduce harassment and the likelihood of success of such a claim. Reaction may not be enough; certain strategic actions are also advisable.

I. HAVE A COMPLETE POLICY

While having a policy won't prevent claims, it is a critical first step in demonstrating library efforts to reduce sexual harassment. The policy should clearly state that sexual harassment of employees or patrons will not be tolerated. The following should be part of the policy:

a. Include a definition of sexual harassment, not only the legal definition, but also examples of what the district considers harassing behavior. Sexual assault will be prohibited, of course, but the kinds of behavior that can lead to a hostile environment should also be identified. This could include unwelcome touching or communications, sexual gestures, comments, jokes, looks and "stalking" behavior.

b. Emphasize that the library has a zero tolerance level for harassing behavior. If this is a new or newly enforced portion of your policy, be certain to notify employees of that fact, along with examples of the prohibited behavior and results of violating the prohibitions.

c. Make it clear that harassers will be disciplined.

d. Provide a complaint procedure that is easy to comply with. Be certain you have at least two individuals to whom complaints may be made (preferably one male and one female).

e. Consider having a two-level complaint system. The choice of complaint level is entirely the "victim's." An informal complaint could result in separate discussions with "victim" and "perpetrator" and raise awareness of harassment and its effects. This would be helpful when a zero-tolerance policy is first enforced. A "formal" complaint would lead to a full investigation and report of its outcome. Confidentiality should be emphasized. The employee does not have to face the complained-of party at the investigation level.

f. Make it clear that false claims will be considered harassment themselves and will subject the maker to discipline.

g. Make it clear that retaliation for reported harassment will also be treated as harassment.

h. Consider and develop the investigation procedure in advance, before you receive a complaint, which should minimally include questioning of appropriate persons, full written documentation of findings and reporting the result to the "victim." Remember, the investigation process is intended to recognize the rights of both parties. An adequate investigation process is critical to properly addressing the rights of both the accuser and the accused.

i. Institute appropriate discipline and follow through. Discipline should be graduated according to the seriousness and number of complaints.

j. Conclude your policy with a statement that it is not intended to operate as a contract or alter any employee's status as an at-will employee.

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II. HAVE A STRONG UNOFFICIAL POLICY PREVENTING SEXUAL HARASSMENT

This means that supervisors and administrators must be committed to identifying and eradicating sexual harassment. Without their commitment, the best official policy is useless. The attitude of administrative personnel is critical to the success of the policy.

III. DISSEMINATE THE POLICY TO EMPLOYEES

The sexual harassment policy should have a prominent position (by reference and summarizing or by inclusion of the whole policy) in the employee handbook, along with the complaint and investigation procedure. Emphasize the library's zero tolerance position. Be certain that employees receive copies of the policy at the beginning of each year and post a copy at the library building(s).

IV. CONDUCT IN-SERVICE TRAINING ON SEXUAL HARASSMENT PREVENTION, RECOGNITION AND RESPONSE FOR ADMINISTRATORS

Administrators need to know how to avoid or respond to harassing behavior against employees or themselves. They also need to know if and when action on their part is appropriate, and if all questioned behavior should be reported under the policy. The "unofficial policy" against sexual harassment noted in II will make it easier for employees and administrators to discuss questions among themselves without feeling that they are "nit-picking" or looking for trouble.

V. CONDUCT EMPLOYEE ASSEMBLIES OR SMALLER MEETINGS

Employees need to know about harassing behavior, how not to be a part of it, and how to report it if it occurs. They need to be encouraged to ask reasonable questions and need to know of whom to ask them. They also need to know that it is not "always funny" to jokingly perform harassing acts and that library response may be an investigation and swift disciplinary action.

VI. SCREEN APPLICANTS FOR EMPLOYMENT

All applicants for employment, and contractors and subcontractors who will work on or about
library property, should be screened to the fullest extent possible.

VII. PURSUE DISCIPLINE AGAINST HARASSERS

A library cannot leave action against harassers to the court. It is essential that a prompt and thorough investigation be conducted as soon as possible. Even if criminal charges are brought against a harasser, the high standard of proof in criminal charges and, therefore, the uncertainty of conviction means that an alleged harasser may be back at the library if not convicted. By that time, the information necessary for a library discipline determination will be much harder to obtain.

VIII. BE ALERT TO THE RIGHTS OF ALLEGED HARASSERS

While all of the above activities are taking place, it is imperative that libraries respect the rights of persons accused of harassment regardless of the outcome of the investigation.

IX. KEEP CAREFUL, THOROUGH RECORDS

Document all acts taken to address sexual harassment issues. Note in your files when and how the policy is disseminated and to whom, and when training or information sessions are held and what is covered. Keep full records of complaints received, investigations made and actions taken. Document your responses to rumors or questions of appropriateness that are brought forward. Keep investigation files confidential to the fullest extent possible.

X. USE YOUR POLICY AND PROCEDURES

Having carefully worded, explicit policy that addresses all kinds of possible issues and procedures is of no use if it is not used. The point of a policy is to reduce the likelihood of sexual harassment. It cannot do that if it is not used. The protection from liability that a well-established, officially-adopted policy can give will not apply if the policy is ignored, Praprotnik v. St. Louis, 485 US 112, 108 S.Ct. 915, 928 (1988).

* Scott F. Uhler is a partner, and Rinda Y. Allison is an associate with the firm of Klein, Thorpe and Jenkins, Ltd., which has offices in Orland Park and Chicago. The law firm represents numerous library districts, local libraries and other local government clients.

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