June 2013 - Parks & Recreation - 40

MANAGING MANAGEMENT

organizational policies (including your
anti-harassment policy), and you are
confident that your staff will behave in
an appropriate and compliant way.
But wait. After a few weeks on the
job, your employee " Kim " comes to
you and complains that, while on
duty at the lifeguard stand, she has
been habitually harassed by the vendor who refills the snack and soda
machines three times a week. From
comments on her bathing suit to jokes
about drowning so she'll give him
mouth-to-mouth to directly asking
her to meet him after work, " Brad " is
making her very uncomfortable, and
she is beginning to dread work on the
days she knows he's scheduled to be
there. She pleads to you, " Can't you
do something to stop him? "
The answer is yes. You can and
you must before it becomes a hostile
work environment. It's not going to
be clear-cut, but let's be honest, no
harassment investigation is clear-cut.
The upside is that, since it's not your
employee who is being accused of harassment, you are not the one who has
to actually conduct the investigation.
Your responsibility is to notify the appropriate senior-level party at the accused harasser's employer and follow
up until the problem is resolved.
" Follow up " means that you communicate to Kim that you have notified the appropriate party at the other
organization and that you keep in regular contact with the other organization to ensure that an appropriate and
timely investigation is being conducted and to learn what the outcome of
that investigation has been.
" Resolved " can mean different
things. You don't know if this is an
isolated incident or if this is a pattern, so the appropriate corrective action is something his company needs
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to determine, not yours. You need to
determine that their action produced
the desired effect: a harassment-free
environment for your employees.
After you've determined that Brad's
company has completed its investigation and taken action (however they
see fit), then Kim should receive a follow-up for closure. This final follow-up,
however, should not come from you,
but directly from Brad's company to
Kim. Avoid at all costs being the deliverer of that message. Make sure Kim
understands that you had no role in the
investigation or the outcome but that
if any additional incidents occur, she
should report them to you promptly.
Next (or better yet, first), update all
of your vendor contracts to include
language that makes clear your expectations for a harassment-free environment and their responsibility to comply. Don't just accept their contract at
face value - negotiate the language!
Without specific language that the
vendor company is responsible for ensuring their employees conform to your
rules and policies about harassment,
Brad's actions might be covered in the
contract's indemnification clause and
your recourse will be limited.
A quick note on the " reasonable
person " standard. What one person
finds offensive, another may not. Be
cautious not to put yourself in the role
of judge and jury as to whether comments or behaviors are truly harassment. According to a case study cited
in the Pepperdine Law Review, " The
court reasoned that the reasonable person
standard caters to a male bias, thus overlooking the experiences of women.
Under a reasonable person standard,
which is said to be dominated by how
males view various acts with a sexual
content, men could perceive certain
acts as relatively harmless. Women,

| J U N E 2 0 1 3 | W W W. N R PA . O R G

however, could view the same situation
as offensive. " So the court ruled that
" reasonable " should be determined by
the victim's peers (in this case, women)
and not the offender's peers (statistically, men). Also important to note, " one
act may be sufficient if it is particularly
severe, while less objectionable incidents may be sufficient if they occur
frequently. " The court also asserted
that an act or behavior can be considered harassment even if that was not
the intention. " Even 'well-intentioned
compliments' are actionable as long as
'a reasonable victim of the same sex as
the plaintiff would consider the comments sufficiently severe or pervasive
to alter a condition of employment
and create an abusive working environment.' The court noted that Title
VII focuses on remedying the effects of
sexual harassment rather than the motivation behind it. Moreover, the court
stated that if intent became a defense,
it would trivialize the effects of sexual
harassment on a 'reasonable' woman. "
Bottom line, err on the side of caution. Don't draw conclusions; respond
to situations. This would also include
your patrons and customers. The solution here is much easier - just ask
them to leave - but the liability is just
as high. You as the employer have an
obligation to respond quickly and appropriately to remedy the situation in
a way that maintains a harassment-free
environment for all your employees.
If you are looking for some sample
language to update your anti-harassment policy, a fairly good example
comes from the state of Wisconsin's Department of Workforce Development: http://dwd.wisconsin.
gov/er/discrimination_civil_rights/
publication_erd_10449_p.htm.
Lauren Yost is NRPA's Vice President of
Operations (lyost@nrpa.org).

June 2013 - Parks & Recreation

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