No employer wants to run a business where employees face any kind of discrimination, if only because such discrimination often comes with expensive lawsuits. Sexual Harassment claims, more so than any other, can also come with a stigma that will ruin your reputation and finances. This article explains what every employer needs to know about their sexual harassment liability, including:
The quick answer is yes. The more complicated answer is that the degree of liability will be determined by the position the employee holds.
For instance, in a case of coworker-to-coworker employee discrimination or sexual harassment, the onus is on the employee who feels they have been the subject of sexual harassment to report it to either their manager, supervisor, or HR. Again, it cannot be emphasized enough that reporting ought to be done in writing so that there is a paper trail of the complaint.
Once it has been filed, then the HR or the manager has additional legal liabilities and responsibilities, especially if they do nothing to stop the behavior.
Employers are responsible for creating a safe working environment for all of their employees and having a non-discriminatory workplace where everyone can feel comfortable bringing forth complaints or concerns about their workplace.
The laws make it clear that the extent of the liability, whether the sexual harassment is quid pro quo or otherwise, the employer has a responsibility to ensure that the employee's work environment is one of safety, non-harassment, and inclusivity. To that extent, the employer must create a safe work environment for its employees.
In order to take steps to fulfill that liability, an employer can, at the very least, produce a strong and clear handbook and actually follow it. The employer should also offer repeated training to ensure that every employee is aware of the policy and knows who to report to.
They must also take steps to avoid any kind of retaliation, as that will only add further liability and damage to the lawsuit. One man who worked for a construction company had his truck burnt up while he was in it after having hazardous material poured over it. Clearly, the retaliations can even become quite physical, and you must ensure that every employee knows to do nothing.
However, The strongest and easiest strategy is to hire an attorney to review your sexual harassment policy, point out any holes or vulnerabilities, and represent you should an accusation arise.
What constitutes a thorough, impartial investigation is the subject of extensive case law, and, as a result, there are certain guidelines you should always follow when investigating claims of sexual harassment internally.
First of all, it is important that everyone involved in the investigation know that their complaints will be held in the strictest of confidence and that their information will not be shared. This also helps avoid any impropriety or retaliation against them.
Next, you should hire someone independent of the HR department so as to have an outside third party investigate. This helps to make sure that there is no conflict of interest for the person who is actually conducting the investigation. This is especially important if there is later any impropriety or the appearance of unfairness.
Consider an example handled by Washington attorney Beverly Grant. In one of their cases, their client reported sexual harassment to her union, and the union shop steward refused to proceed with the complaint that was being made. It was later discovered that the union shop steward was involved in a relationship with the person who was responsible for conducting the investigation. That explained why the complaint was not moving forward and was a clear conflict of interest.
That is why, as part of an investigation, there must be at least an appearance of fairness so that the person complaining can feel that their complaint is being held in confidence, that it is not being overlooked or compromised, and that it will be thoroughly investigated.
The confidentiality and the propriety of any investigation are essential, and not just for the victims. Witnesses must also feel that their disclosure will not cause them any retribution as a result of what they saw or heard or what they are conveying to the investigator.
In another Washington case, even though the victim reported the supervisor, instead of the company taking affirmative steps to remedy the situation, the employee ended up demoted and assaulted. Even though she reported it to her supervisors, she was the one who got demoted, not the perpetrator who assaulted her. The situation opened up the company to extensive additional liability.
That is an example of how an investigation should not be conducted. It was horrible. She came home, and her house had been broken into, the drawers had been opened, and her cat had been killed. Another woman had her young daughter assaulted and told, “Maybe this will teach your mom not to file sexual harassment cases.”
The world of sexual harassment can get quite violent; crimes, even murders, can be committed. Depending on what's at stake, it can get quite dangerous. This is why you should always be clear and transparent and create a workplace free of discrimination and retaliation, or else your company may go under when the lawsuits start rolling in. For more information on Enforcement Of Sexual Harassment Laws Through EEOC, an initial consultation is your next best step.