SEXUAL
HARASSMENT AT SEA: CHARTING A SAFE COURSE
(published October
1997)
"Is flirting allowed on the ship?" This question coming from a crewmember would likely cause an involuntary wince from many human resource or risk management professionals in the cruise industry. At the root of the wince is the specter of large jury verdicts and varied public perception of the law pertaining to sexual harassment. With hundreds of multicultural and multilingual crew working and living in close quarters on a ship, confusion about what constitutes sexual harassment is inevitable even with the most artfully drafted employee handbook. What follows is a simple explanation of sexual harassment and what a cruise line can do to insulate itself from liability.
Jurisdiction and Application of Sexual Harassment Laws
In 1963 the U.S. Supreme Court held "the law of the flag ordinarily governs the internal affairs of a ship." McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963). The Court more recently conceded Congress "knows how to place the high seas within the jurisdictional reach of a statute," Equal Employment Opportunity Commission v. Arabian American Oil Company, 499 U.S., 244 (1991), and strong arguments can be made against the application of U.S. sexual harassment laws to foreign crewmembers and possibly even U.S. crewmembers serving on foreign-flag vessels.
The U.S. Supreme Court has not determined whether federal sexual harassment legislation applies to claims brought by foreign crewmembers on foreign-flagged ships sailing in international waters. With respect to crewmembers who are U.S. citizens, in 1991 Congress broadened the application of federal sexual harassment legislation to foreign employment by an "American employer" in a foreign country when the employee is a citizen of the United States. Under EEOC guidelines interpreting the extraterritorial application of Title VII (which may or may not be followed by a court), a foreign corporation may be considered an "American employer" when the "totality" of the company's contacts with the United States suggest a significant connection to the U.S. The foreign corporation's principal place of business, office locations, nationality of management and dominant shareholders, and location of management, are all factors to be considered in determining whether a foreign corporation is an "American employer." [In a 1991 race and gender discrimination suit brought by U.S. crewmembers under Title VII, the Eleventh Circuit enforced an EEOC subpoena directed to Kloster Cruise Ltd., although it declined to decide whether it had subject matter jurisdiction in a Title VII action brought against a foreign flagged cruise ship. EEOC v. Kloster Cruise Ltd, 939 V.2d 920 (I Ith Cir.1991)]. Given the developing state of the law, jurisdiction and application of sexual harassment laws should be contested in most sexual harassment claims against foreign shipowners.
Most states have enacted sexual harassment laws similar to Title VII and these statutes may apply in addition to or separate from the federal statutes. Generally, however, these statutes apply only to conduct occurring within that state to its own citizens. For example, in Campbell v. Arco Marine, Inc., 42 Cal.App.4th 1850 (1996) the California sexual harassment statute was held inapplicable to a Washington resident suing a California employer for acts which mostly occurred on a vessel outside the boundaries of California.
What is Sexual Harassment?
Federal sexual harassment legislation was designed to curb discrimination on the basis of gender, not to stifle free speech, criminalize flirting, or dictate working and personal relationships. Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, makes it illegal for an employer subject to the Act to discriminate against an employee because of that individual's sex. Speech or conduct which is directed at the employee because of his or her gender, or which has a disparate impact on the basis of gender is also prohibited.
The "legal definition" of sexual harassment is found in 29 C.F.R § 1604.11(a):
[Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when: (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual; or (3) 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.
In plain English, sexual harassment is usually one of two breeds. One is the "quid pro quo" form in which conditions of employment, i.e. hiring, promotion, raises, etc., are contingent on sexual favors bestowed by the employee. This is the classic power trip "you must do this sexual favor or I will fire youdemote you/freeze your pay," etc. Quid pro quo harassment is generally easily understood and identifiable. The employer is liable even without knowledge of this type of conduct.
The second and foggier category of sexual harassment includes "hostile work environment," "preferential treatment," and "constructive discharge" theories. It is where working conditions have been "discriminatorily altered" for some employees. A hostile work environment is one in which "the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment'." Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993) quoting from Meritor Savings Bank v. Vinson, 477 U.S 57 (1986). Nude photographs depicting persons in a demeaning manner, gender-based jokes, comments which disparage one's gender, or unwelcome remarks pertaining to sex can combine to become so offensive to reasonable people that the working environment becomes abusive.
In sum, sexual harassment is speech or conduct of a sexually discriminatory nature, which is neither welcomed nor encouraged, and is committed or permitted by a superior, and which is so offensive to a reasonable person that it creates an abusive work environment. A comment to which an overly sensitive person takes offense is not necessarily harassment if "reasonable" people would not find it created an abusive work environment.
How to Avoid Liability
Although an understanding of the legal definition of sexual harassment is important in formulating a policy statement, training, and evaluating liability, in handling a crewmember's complaint of sexual harassment all allegations should be taken seriously, even if the conduct seems trivial or the complainant is obviously "thin-skinned." A thorough immediate investigation, followed by appropriate, prompt remedial action is the key to prevailing in sexual harassment claims. Even if the complaining employee does not want any action taken, once management knows of a potential problem, it must react. See, e.g., Steele v. Offshore Shiphuilding, Inc., 867F.2d 1311, 1316(11th Cir. 1989) (once management has actual or constructive notice of a sexually harassing environment and fails to take prompt and adequate remedial action the employer will be liable).
A welcome trend in the law has evolved whereby employers have insulated themselves from liability by conducting a prompt and thorough investigation followed by appropriate remedial action. Even when sexual harassment occurs, the employer may not be liable if it conducts prompt and thorough investigations, takes appropriate remedial action to deter future occurrences, and it advises the complainant of the action taken.
The following cases illustrate the trend: Hirras v. National R.R. Passenger Corp., 95 F.3d 396, 400 (5th Cir. 1996) (affirming summary judgment in employer's favor where employer took complaints seriously and conducted a prompt and thorough investigation); Watts v. Kroger Co., 955 F. Supp.674 (N.D. Miss.1997) (employer not liable as a matter of law as it conducted a prompt investigation followed by appropriate remedial action); Waymire v. Harris County, 86 F.3d 424, 428 (5th Cir. 1996) (employer absolved from liability where it conducted a prompt investigation and remedial action); Balletti v. Sun Sentinal Co., 909 F. Supp 1539 (S.D. Fla. 1995) (no liability when employer retained attorney to conduct prompt investigation and initiate training for all employees); Carmon v. Lubrizol Corp. 17 F.3d 791, 795 (5th Cir. 1994) (company not liable after prompt investigation and sexual harassment training program).
What constitutes "appropriate remedial action" naturally depends on the circumstances. A "he says/she says" scenario with no sources to corroborate either version often places management in a quandary as to the action to be taken. In close calls consider transferring one of the parties to another vessel. A "zero tolerance" policy of firing anyone accused of harassment is obviously unfair to some employees, may eliminate valuable personnel and may well lead to other types of lawsuits. Courts have recognized the difficulty an employer faces obtaining sufficient evidence to corroborate conflicting versions of an encounter. In determining whether an employer has taken appropriate remedial action, courts evaluate whether the employer's action is effective in terminating the harassment or discrimination and eliminating a hostile work environment, not how harshly the alleged harasser is punished. For example in Kilgore v. Thompson & Brock Management, Inc., 93 F.3d 752,754 (I Ith Cir.1996), the court affirmed summary judgment in favor of an employer who conducted an investigation within three business days of receiving notice, interviewed the alleged harasser, store manager, and other female store employees, yet failed to find any support for the allegations and did not discipline the alleged harasser. Similarly in Balletti v. Sun-Sentinel Co., 909 F. Supp. 1539, 1548 (S.D.Fla. 1995), the court entered judgment in favor of an employer where the company conducted an investigation, but could not corroborate allegations and did not recommend any disciplinary measures.
Even in cases of rape (by one employee of another), an employer may avoid liability by conducting a prompt investigation followed by remedial measures. For instance in Redman v. Lima City School Dist Bd Of Educ, 889 F. Supp. 288 (N.D.OH 1995), the court granted summary judgment for an employer where an employee was raped, but the employer concluded its investigation within a month and terminated the alleged harasser. Summary judgment was granted in favor of the employer in Gary v Long, 59 F.3d 1391 (D.C. Cir. 1995), where an employee was raped, but the employer promptly interviewed all persons concerned and granted the employee's request to transfer to another facility.
Liability for sexual harassment which occurs at sea may be avoided in most situations if employers follow the following guideposts:
1. Have a strong written policy which is provided to all employees
Although most shipowners have established policies provided to all employees in one form or another, the better practice is to have a written policy signed by an employee at the time of hire and filed in the employee's own personnel file. Placing a poster in the crew lounge or on a bulletin board on the ship may not demonstrate as much of an effort to communicate the sexual harassment policy to all employees.
2. Establish an internal system to handle complaints which gives employees the opportunity to bypass their immediate supervisor if such person is the target of the complaint.
We often hear a claimant state that because he or she was working on a ship, they felt especially vulnerable to retaliation or were logistically unable to reach management without involving the alleged harasser. Either a "go-to" person, 800 number complaint system, or other means tailored to the itinerary of the vessel should be implemented and communicated to crew to allow free reporting without fear of retaliation.
3. Train supervisors to take all complaints seriously, whether the reported harasser is male or female.
A U.S. jury and shipboard management may have different opinions regarding whether alleged conduct constitutes sexual harassment. When a complaint is received, it should immediately be relayed to the individual designated by the company to investigate sexual harassment complaints, without any comments to the accuser about the validity of such a complaint. The accuser should be reassured that all complaints are taken seriously. No effort should be made to discourage pursuit of a complaint of sexual harassment. There should not be a distinction between a "formal" and an "informal" complaint. Once the complaint is made, action should be taken. Sexual harassment awareness training should be mandatory for all supervisorial personnel.
4. Conduct an immediate investigation, followed by prompt appropriate remedial action.
Ideally, the immediate investigation should be at the direction of legal counsel so that a privilege can later be claimed. Confidentiality should be requested from all who are interviewed and interviews should be conducted on a "need to know" basis. Confidentiality lessens the chance of retaliation. Once prompt remedial action is taken, the action should be reported to the complainant.
5. Document each phase of the investigation and the remedial action taken.
This will assist with any lawsuit which springs from the incident at hand, and will establish a pattern of enforcement which can be used in other matters. Documentation will also form a basis to support any action taken pursuant to a company's progressive discipline policies, should the alleged harasser be accused in the future. Avoid making any judgments until the investigation is complete.
Your Sexual Harassment Policy Will Help You Weather the Storm
Anita Hill, the university professor whose 1991 accusations against U.S. Supreme Court nominee Clarence Thomas are credited with paving the way for sexual harassment tort remedies, recently predicted an upcoming backlash against the concept of sexual harassment. She fears Paula Jones' accusations against President Clinton will cause "fallout" regardless of who ultimately prevails. Perhaps once the U.S. public tires of sexual harassment litigation the storm of claims will subside. In the meantime, a well communicated and enforced policy is the best umbrella available.
