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	Gray Areas Complicate Sexual Harassment Cases By Sacha Pfeiffer Boston Globe May 25, 2006 http://www.boston.com/business/articles/2006/05/25/ gray_areas_complicate_sexual_harassment_cases/ Although most companies have detailed and similar policies against sexual harassment, employers often find themselves in murky territory when it comes to defining, proving, and disciplining sexual harassment in the workplace. The result: Companies deal with complaints in vastly different ways. "There are obviously laws against harassment, but defining exactly what that is is hard, and so is applying those laws to a particular set of facts and deciding what a company does about it," said Ron Peppe , a vice president of the Association of Corporate Counsel in Washington, D.C., an umbrella group for lawyers who work for in-house legal departments. "So it's a gray area sometimes, because there are not hard and fast rules." Indeed, the sexual harassment policy at Caritas Christi Health Care, which has received reports from at least 10 women that its president, Dr. Robert M. Haddad , allegedly sexually harassed them, appears straightforward. Its definition of harassment includes "sexually charged looks and gestures" and "unnecessary touching of an individual," such as hugging, both of which are complaints made about Haddad. Its "progressive discipline policy" includes written warnings, suspensions, and termination. Despite the explicit enumeration of acts that would be considered harassment, Haddad disputed that his behavior was sexual harassment, describing the gestures instead as innocent reflections of the Lebanese culture in which he was raised. Caritas had come under fire internally and externally for initially reprimanding Haddad rather than swiftly firing him. "Sexual harassment is such a messy area," said Jay Shepherd , a Boston lawyer who specializes in employment law and teaches sexual harassment training courses for employers. "In many ways, it's one of the most difficult areas of employment law because it's always `he said, she said' or `he said, he said.' " Handling sexual harassment cases is complicated because they must be evaluated on a case-by-case basis, Shepherd and other employment lawyers said. Harassment complaints are often highly fact-specific and subjective and typically turn on the credibility of the accused and the accuser, since there are frequently few, if any, witnesses. In addition, perceptions of what is welcome or unwelcome behavior can change with time, particularly in cases in which workplace romances have soured. For that reason, some companies prohibit romantic relationships between co-workers, especially supervisors and subordinates, and consider failures to disclose even consensual relationships a firing offense. A company's internal culture can also be a factor, leading some employers to have different levels of tolerance for different types of behavior. "What is culturally deemed acceptable varies by company," said Julie L. Burke , a director in the employer's resource group for Associated Industries of Massachusetts, the state's largest business lobby. "So an all-male environment might be different than a male-female environment, or a white-collar environment might be different than a blue-collar environment." How an employer chooses to handle a complaint can depend on the severity of the conduct, the number of complaints, and whether there have been prior allegations involving the same person. When determining appropriate penalties, employers often consider the circumstances of the accused person's career, such as whether he or she was hired recently or is a longtime employee and whether his or her performance has otherwise been exemplary. Employment lawyers advise employers to be consistent in their discipline, since companies can land in hot water when they treat some accused employees, such as top salespeople, differently than others. "These are very complex problems, and they further complicate how you deal with discipline," said Arthur G. Telegen , a Boston employment lawyer. "Every employer ought to be vigilant to prohibit sexual harassment. That's the easy part of the decision making. The harder question is how to get there in a rational way." Many companies statewide adopt a model policy on harassment drafted by the Massachusetts Commission Against Discrimination, which defines sexual harassment as unwelcome physical or verbal acts that are sexual in nature and create an intimidating, hostile, humiliating, or offensive work environment. They can range from a leering look, inappropriate joke, or off-color e-mail to physical touching and criminal sexual conduct. When sexual harassment has occurred, according to the agency's model policy, an employer "must take prompt and effective corrective action," possibly ranging from reprimand to discharge, that "should reflect the severity of the conduct." Still, "it's not always black and white, unfortunately," Burke said, "and that's what companies struggle with in these situations." Sacha Pfeiffer can be reached at pfeiffer@globe.com.
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