Publication Date: Winter 1999
HARASSMENT PREVENTION FOR
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
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
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
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.
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.
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
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.