|Jeffer, Mangels, Butler & Marmaro LLP / February, 1999
For international businesses accustomed to a less regulated workplace than in the United States, it is sometimes difficult to understand the type of behavior that can subject their businesses to multi-million dollar jury verdicts. However, in the United States, the law does not recognize cultural differences as a defense to workplace behavior. While a comment, a joke or even a friendly touch in the workplace may be perfectly innocuous on foreign soil, that same phrase or action may cost a company vast sums of money in a workplace governed by U.S. laws. Foreign-owned companies doing business in the United States should learn the basics of American employment laws, and make sure their employees and supervisors are thoroughly trained in acceptable workplace behavior.
There are fundamental differences between U.S. and international attitudes towards regulating behavior in the workplace. These differences are largely reflected in state and federal employment-related laws adopted in the United States during the last 30 years. For example, most Asian and Latin American countries did not adopt Equal Employment Opportunity laws until the mid-eighties or later. And where adopted, most countries have not come close to regulating personal interaction in the workplace the way the U.S. has. Moreover, cultural as well as historical perceptions of the roles and rights of women in the workplace shared by many nations often cloud understandings of what is expected when conducting business in America.
The United States Supreme Court recently decided two very important cases imposing even stricter standards on employers in sexual harassment cases. In the first case, Burlington Industries v. Ellerth, the Court ruled that an employer is liable for a "hostile work environment" created by a supervisor - a dramatic shift from the prior negligence standard of "knew or should have known." In a second case, Faragher v. Boca Raton, decided the same week, the Supreme Court held that an employer cannot use a "reasonable care" defense to liability for a supervisor's harassment where it failed to maintain and disseminate appropriate sexual harassment policies.
Take heed! In the United States, employers have an affirmative obligation to create, implement, and disseminate effective anti-harassment policies. In fact, satisfying this obligation is the employer's sole protection in the event an employee complains of harassing or other discriminatory conduct. It is no longer a defense that management did not sanction the conduct or was ignorant of the offending conduct, and it will not help that the complaining employee suffered no adverse employment action.
To be sure, both American and other nations have centuries of unequal treatment of female workers. Yet unlike some cultures which have only recently confronted the issue, U.S. laws allow employees to sue for an alleged breach of law. And all too often, courts go out of their way to let the case go to full jury trial. In this environment, comments which may have been meant as "compliments" could lead to a multi-million dollar jury verdict.
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