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Three suggestions to prevent workplace sexual harassment

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How many times have you picked up the newspaper in recent years and seen a story about a politician, an actor or a businessperson being sued for sexual harassment? It seems as if there is a new story every day.

One of the most active areas of employment litigation the last decade has been sexual harassment in the employment setting. While articles could be written about sexual abuse in all areas of life, of particular interest to employment lawyers is the subject of sexual harassment in the workplace. This article will present three suggestions for any employer to follow in an effort to stay out of trouble in this area.

History: Before the passage of the Civil Rights Act of 1964, an employer could legally fire an employee if she (or he) would not go to bed with the boss. Another 20-plus years passed before the Supreme Court weighed in on the subject in Meritor Savings Bank v. Vinson, 477 U.S. 57, 91 L.Ed.2d 49, 106 S.Ct. 2399 (1986). That case stood for the proposition that not only was sexual harassment unlawful under the Civil Rights Act, but it included “hostile environment” situations as well as those where sex was a requirement of the job. Since that case was decided, employers have known that they needed to take great care to address and prevent sexual harassment in the workplace. Over the years, we have learned that employees cannot lawfully be harassed on the basis of any protected characteristic under the various civil rights statutes, so the suggestions in this article would apply to, for example, racial harassment.

Suggestion No. 1: Every employer should have a written policy dealing with harassment in the workplace. In 1998, the Supreme Court decided two cases on the same day in an attempt to define the circumstances in which an employer could be held liable for sexual harassment in its workplace. Under the rulings of Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998) and Burlington Industries Inc. v. Ellerth, 118 S.Ct. 2257 (1998), the Supreme Court held that employers are liable for actionable sexual harassment by a supervisor with immediate (or successively higher) authority over the employee. However, when no “tangible employment action has been taken against the employee, the employer is entitled to present an affirmative defense to the liability or damages by showing (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Clearly, if an employer does not have a policy dealing with harassment, it will have a difficult time proving that it provided preventive or corrective opportunities to avoid harm.

Suggestion No. 2: Every claim of harassment should be thoroughly investigated. In some instances, an employer who takes appropriate corrective action after harassment has occurred can avoid liability altogether. Questions should be answered up front as to who should conduct the investigation, how the information obtained in the investigation will be handled and who will make decisions concerning the conduct that occurred.

The investigator should review all applicable company policies and procedures to make sure that the investigation is conducted in accordance with them, decide who to interview and familiarize himself or herself with the Equal Employment Opportunity Commission’s guidance (such as suggested people to interview and questions to ask during the interview) on conducting the investigation. The investigator should then study the personnel records of the primary actors in order to understand as much as possible about the overall circumstances of the matter. The investigator should also look at documents that already had been provided by any actors involved.

Suggestion No. 3: Take appropriate corrective action. After the investigation is concluded, appropriate company officials (and not the investigator) must decide whether to take any further action, and, if so, what action to take. These officials must make the final, difficult call about the credibility of witnesses and the culpability of any inappropriate conduct. The case law says that the corrective action may vary from case to case, but that it must be reasonably calculated to prevent the harassment from recurring. The discipline should be administered in accordance with any progressive discipline policy in effect with the employer.

At the conclusion of the investigation, the employer may require a written report from the investigator. Before Faragher and Ellerth, this was often a bad idea because the report might contain information that would be harmful to the employer’s position in potential litigation. After these two cases were decided, however, the employer is almost always well-served by a thorough report showing the state of the development of the facts at the time in question and the appropriate corrective action to be considered. This report should be viewed as a probable exhibit at the time of trial, so the employer should study it carefully before deciding on any corrective action. The report should provide information, but not opinion. It should give the witness’ testimony without making credibility findings. The reason for this is that the decision on corrective action should be made by appropriate company officials and not by the investigator. This information can be given verbally, if requested. The report should also provide a chronology of the events investigated and list the witnesses interviewed and the documents inspected.

The employer should normally ask the investigator to meet separately with the complainant and the accused to explain the result of the investigation. If discipline of the accused is warranted, a company official with authority to administer the discipline should be present for the interview to announce the discipline and answer any questions posed. The complainant should not be given the details of any discipline of the accused but should merely be told, generally, that appropriate discipline has been administered. If the investigation was inconclusive, the complainant should be assured that the company remains committed to protecting him or her from harassment and retaliation.

The employer should couple any corrective action with a review of its policies and procedures and an effort to better educate the workforce about sexual harassment, the company’s commitment to eradicating it and the procedures to report it to appropriate company authorities. Also, if the complainant appears to need psychological counseling as a result of the incident, the employer should offer to provide such counseling (at the employer’s expense).

Most sexual harassment investigations result in a “he said, she said” situation in which the existence of actionable conduct will not be proved or disproved. The investigator should resist the temptation to reach a conclusion one way or the other unless the evidence satisfies him or her that a finding is warranted. The evidence will often show, however, that, at the very least, poor judgment was exhibited by one or more of the actors. This should be reported honestly by the investigator so that the company will have a basis for correcting the situation.

David Fielding and Laura Hallmon are partners with the Cantey Hanger LLP law firm and Allison Carroll is an associate. They can be reached at dfielding@canteyhanger.com, lhallmon@canteyhanger.com and acarroll@canteyhanger.com.

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