Employers just got a new reason to review their harassment prevention strategies following the unanimous decision by the U.S. Supreme Court that broadens what the law deems retaliation against workers who complain about sexual harassment.

The high court ruled last June that an employer can be guilty of violating the law regardless of where retaliation takes place - either inside or outside the workplace.

Earlier rulings said retaliation claims could only be predicated upon a hostile work environment.

The ruling that changed the landscape stems from a suit filed by forklift operator Sheila White against her employer, Burlington Northern and Santa Fe Railway Co.

White claimed the railroad reassigned her to more physically arduous tasks such as replacing track and clearing brush after she complained of sexual harassment. After complaining about the transfer, she was place on unpaid leave for insubordination. After the company determined she had not been insubordinate, she was reinstated and awarded back pay. A U.S. District Court jury awarded $43,500 to White, a decision that was affirmed by the U.S. Court of Appeals for the 6th Circuit, in Cincinnati.

Rejected reasoning

The railway, in pleading its case before the Supreme Court, argued that the law requires retaliation to be linked to an employment decision such as termination or denial of a promotion. The company maintained it did neither. But the high court rejected the railway’s reasoning.

Wrote Justice Stephen Breyer, “An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace. The unpaid suspension and reassignment could deter an employee from filing a discrimination complaint.”

This new standard “broadens the number of things that managers need to be careful of,” said management attorney Joel W. Rice of Fisher & Phillips in Chicago, “but the basic message is the same: If people complain, their complaints should be taken seriously because you want to make sure that harassment is not taking place and is rooted out.”

Setting a new legal precedent, the decision gives employees the right to sue for retaliation taken inside - and outside - the workplace. This could mean that employers might win retaliation claims for even subtle reprisals, such as being excluded from a training lunch.

Because of the ruling, anti-harassment training should ensure managers understand that after an employee complains of harassment, the person must be included in all of the same lunches, meetings and activities he or she had previously attended. “Let managers know that if somebody has complained, they shouldn’t be treated different in any respect,” Rice said. “If they were part of the lunch group, they still should be part of the lunch group. Otherwise, managers risk being accused of retaliation.”

Consequently, employees need to understand two key messages: First, once an employee makes a claim, employers have to be aware that any action they, their managers or employees take is going to be looked at very closely for a long time to come. Second, employers need to get the word out to their managers.

Better training

The court issued its opinion at a time when several high-profile companies face allegations of sexual harassment. Last May, for example, faced with accusations that an executive assistant received virtually no help after complaining of sexual advances by its chief executive, Toyota Motor North America appointed an independent task force to review its anti-harassment practices, and its chief executive officer retired earlier than planned.

In June, computer services firm Keane Inc. announced a $1.14 million settlement with its vice president of marketing, whose allegations of sexual harassment had led to the resignation of Chief Executive Officer Brian Keane. The same month, Wal-Mart Stores Inc. agreed to pay $315,000 to settle two complaints.

As we all know by now, charges of sexual harassment can cost companies everything from consumer goodwill to big bucks, while simultaneously emptying corner offices. California, Connecticut, Maine and the Virgin Islands require periodic anti-harassment training. Five states and the federal Equal Employment Opportunity Commission strongly encourage periodic employee and management sexual harassment training as a means for employers to provide basic, adequate defense against employee complaints. Eleven other states require state employees be trained or offer sexual harassment training programs to employers, labor organizations and employment agencies.

State moves

Meantime, a number of other states have bills under consideration that would either require or encourage private industry to provide training to guard against sexual harassment.

What does this mean? Newspapers should strongly consider strengthening their employee and management interventions through initial hiring and periodic training strategies.

“By nature, it’s very dry information,” said Chad Melvin, manager of employee learning at Aflac Inc.  At American Electric Power Co., which has 19,600 employees in 11 states, the firm tries to make hypothetical situations hit home - literally. During training, supervisors are asked to imagine that the victim is their sister or daughter. “Once they look at it from that perspective,” said Mary Cofer, director of diversity and culture, “it’s like a light bulb goes off.”

Remember: It makes no difference whether the person whose acts are the basis of a complaint is an employee, independent contractor or customer. As an employer, you must promptly respond to and stop harassment situations in your workplace, no matter the source.

If the source of the harassment is not your employee, you must contact the alleged harasser’s employer, apprise them of the situation and the circumstances surrounding the claim and request that some type of investigative action is taken.

The Supreme Court’s move highlights once again how important it is for newspapers, and other companies, to handle sexual harassment claims seriously.

Everything you do will have a very real impact on whether the employee is satisfied with how the company addresses the situation or whether he or she files an external complaint or lawsuit.

Ken Columbia is the Newspaper Association of America’s director of industry staff development. He can be reached at coluk@naa.org.