Publication Date: Winter 1999

HARASSMENT PREVENTION FOR YOUR BUILDING

An eye-opening article in Jay Romano's "Your Home" column in the Real Estate Section of The New York Times of January 31,1999, reported on developments that substantially increase the possibility of cooperatives and condominiums becoming targets of suits for harassment in the workplace. The Supreme Court decisions in the June 1998 cases of Burlington v. Ellerth and Faragher v. Boca Raton found that employers could be held "strictly liable" for harassment, "even if it did not have knowledge that the offensive behavior was occurring." Thus, it is possible that cooperatives and condominiums could be found liable for discriminatory hiring policies of management companies on their behalf.

Mr. Romano extensively quoted Paul Salvatore, a partner in the law firm of Proskauer Rose LLP, which specializes in labor and employment law, who described harassment in the workplace as "a minefield for the unwary". Mr. Salvatore is counsel to the Realty Advisory Board on Labor Relations, Inc. (RAB), which represents most of our member cooperatives and condominiums in their dealing with their employees. Mr. Salvatore is quick to point out that when an employer has a policy against harassment and a procedure for dealing with complaints, this can serve as an "affirmative defense" to liability.

At a minimum, Mr. Salvatore's firm suggests that an employer should:

1) adopt an official non-discrimination and anti-harassment policy, which includes effective avenues for employees to bring forward complaints (not just through their immediate supervisor, who may be the harasser);

2) distribute a clear statement of these policies and procedures to all employees on a periodic basis to make sure all employees know of its existence and understand the complaint process;

3) respond to all complaints promptly and thoroughly investigate to determine if violations of the policy have occurred; and

4) take prompt, appropriate remedial action to enforce the policy.

Before issuing its policy, the employer should decide who will be responsible for receiving employee complaints of harassment, discrimination or retaliation, being sure to designate several different "avenues of complaint", so that an employee who feels uncomfortable discussing the matter with one of those designated to receive complaint can go to another. The key to an effective complaint procedure is that it is easily accessible and that employees feel comfortable using it.

To emphasize the mutual responsibilities of employer and employee in enforcing the anti-harassment policy, a notice such as the following is suggested (perhaps on the cover of the booklet describing this policy).

ABC Owners Corp. is committed to a work environment in which all individuals are treated with respect and dignity. Each individual has the right to work in a professional atmosphere that promotes equal employment opportunities and prohibit discriminatory practices, including harassment. Therefore, ABC Owners Corp. expects that all relationships among persons in the workplace will be business-like and free of bias, prejudice and harassment.

It is the policy of ABC Owners Corp. to ensure equal employment opportunity without discrimination or harassment on the basis of race, national origin, religion, gender, age, disability, citizenship, marital status, creed, genetic predisposition or carrier status, sexual orientation, or any other characteristic protected by law. ABC Owners Corp. prohibits and will not tolerate any such discrimination or harassment.

Proskauer Rose LLP has shared with CNYC the following suggestions to help member cooperatives and condominiums formulate non-discrimination and anti-harassment policies:

Definitions of Harassment
a. Sexual harassment constitutes discrimination and is illegal under federal, state and local laws. For the purposes of this policy, sexual harassment is defined, as in the Equal Employment Opportunity Commission Guidelines, as unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature, where, for example (i) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; (ii) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals; or (iii) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.

Sexual harassment may include a range of subtle and not-so-subtle behaviors and may involve individuals of the same or different genders. Depending on the circumstances, these behaviors may include, but are not limited to: unwanted sexual advances or requests for sexual favors; sexual jokes and innuendos; verbal abuse of a sexual nature; commentary about an individual's body, sexual prowess or sexual deficiencies; leering, catcalls or touching, insulting or obscene comments or gestures; display or circulation in the workplace of sexually suggestive objectives or pictures (including through e-mail); and other physical, verbal or visual conduct of a sexual nature.

b: Harassment on the basis of any other protected characteristic is also strictly prohibited. Under this policy, harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of his/her race, national origin, religion, gender, age, disability, citizenship, marital status, creed, genetic predisposition or carrier status, sexual orientation, or any other characteristic protected by law, or that of his/her relatives, friends or associates, and that: (i) has the purpose or effect of creating an intimidating or hostile or offensive work environment; (ii) has the purpose or effect of unreasonably interfering with an individual's work performance; or (iii) otherwise adversely affects an individual's employment opportunities.

Harassing conduct includes, but is not limited to: epithets, slurs or negative stereotyping; threatening, intimidating or hostile acts; denigrating jokes and display or circulation in the workplace of written or graphic material that denigrates or shows hostility or aversion toward an individual or group (including through e-mail).

Individuals and Conduct Covered
These policies apply to all applicants and employees, and prohibit harassment, discrimination and retaliation whether engaged in by fellow employees, by a supervisor or manager, or by someone not directly connected to ABC Owners Corp. (such as vendors, consultants, or residents or guests of the building).

Retaliation is Prohibited
ABC Owners Corp. prohibits retaliation against any individual who reports discrimination or harassment or participates in an investigation of such reports. Such retaliation will be subject to disciplinary action.

COMPLAINT PROCEDURE

Reporting an Incident of Harassment, Discrimination or Retaliation
ABC Owners Corp. strongly urges the reporting of all incidents of discrimination, harassment or retaliation, regardless of the offender's identity or position. Individuals who believe they have experienced conduct that they believe is contrary to ABC Owners Corp.'s policy or who have concerns about such matters should file their complaints with __________. Individuals should not feel obligated to file their complaints with their immediate supervisor first before bringing the matter to the attention of one of the other designated representatives identified above.

Early reporting and intervention have proven to be the most effective method of resolving actual or perceived incidents of harassment. Therefore, while no fixed reporting period has been established, ABC Owners Corp. strongly urges the prompt reporting of complaints or concerns so that rapid and constructive action can be taken.

The availability of this complaint procedure does not preclude individuals who believe they are being subjected to harassing conduct from promptly advising the offender that his or her behavior is unwelcome and requesting that it be discontinued.

The Investigation
Any reported allegations of harassment, discrimination or retaliation will be investigated promptly. The investigation may include individual interviews with the parties involved and, where necessary, with individuals who may have observed the alleged conduct or may have other relevant knowledge. Confidentiality will be maintained throughout the investigatory process to the extent consistent with adequate investigation and appropriate corrective action.

Responsive Action
Misconduct constituting harassment, discrimination or retaliation will be dealt with appropriately. Responsive action may include training, referral to counseling and/or disciplinary action, as ABC Owners Corp. deems appropriate under the circumstances.

If an employee making a complaint does not agree with its resolution, the employee may appeal to __________.

Finally, the law and the policies of ABC Owners Corp. prohibit disparate treatment on the basis of gender or any other protected characteristic, with regard to terms, conditions, privileges and perquisites of employment. The prohibitions against harassment, discrimination and retaliation are intended to complement and further these policies, not to form the basis of an exception to them.