Oct27TueOctober 27, 2020
Author: Telios Law
Source: With permission: https://telioslaw.com/blog/ten-ways-land-court-over-sexual-harassment
Harvey Weinstein, Matt Lauer, Al Franken—and the list goes on. High-profile sexual harassment allegations have shaken up Hollywood, the media, and politics. But don’t think that this trend is confined to celebrities. They are not the only ones who can, and do, abuse power. Sexual harassment by employees, if not dealt with swiftly, can create a toxic work environment as well as land even small organizations in hot water. In light of this timely topic, here are ten easy ways to end up in court over sexual harassment. Topics in this “what not to do” list are examples taken from actual cases.
Before diving into this list, it is important to remember when organizations can be held legally liable for sexual harassment that happens to their employees. A key defense exists to sexual harassment liability for organizations, called the Faragher/Ellerth defense. In order to take advantage of this defense, an organization must prove “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.”1 With that in mind, let’s dive into the list, as many of these easy ways to fail are ways to lose this defense.
1. Have a sexual harassment policy that no one knows about.
Having a sexual harassment policy that the organization does not condone harassment is a good start. But it does little to help the organization or its employees if it sits on the shelf and no one knows it exists. In some cases, courts have held that the fact that employees did not know about the policy meant that the employer was not allowed to take advantage of the policy to show it had taken steps to prevent harassment.2 In those cases, both parts of the Faragher/Ellerth defense are implicated.
2. Conduct a biased investigation and refuse to discipline any employees.
Investigating allegations of sexual harassment is a good idea, and can help the organization set up a good defense to a later legal claim. But mishandling the investigation and not taking appropriate corrective steps can end up leading to liability for the employer. You can easily mishandle the investigation by assigning someone who is biased in favor of the person accused, who is too low-level to hold accountable the person accused, or who just plain doesn’t know what he or she is doing. Then you can make things worse by refusing to act on legitimate investigative findings.3
3. After getting multiple complaints of severely inappropriate behavior, discipline no one, conduct a 45 minute training session, and call it a day.4
In one case, a female employee was subjected to horrendous harassment over a long period of time by the men in her workplace, including her supervisor. The company responded by concluding there had been no sexual harassment, disciplining no one, and giving a 45-minute remedial training session to employees and management staff. After the employee sued and won at trial, the company tried to argue that it had taken appropriate corrective action. Not so fast, said the court. Where the behavior is as severe as it was in this case, it is not appropriate corrective action to simply hold a training session and call it a day. Especially when no offenders even got disciplined.5
4. Suggest to the alleged victim that she resign.6
In one extreme case, an employee was raped by a supervisor. Shortly thereafter, the employee admitted she had been having an affair with another individual and was pregnant. Her employer did an investigation, but focused almost entirely on discovering who the father of the employee’s baby was, rather than whether sexual harassment occurred. On top of that, the investigator suggested multiple times that she should probably resign. When she later brought suit for sexual harassment, the court was not at all convinced that the employer’s response was reasonable.7
5. Make sure your employees talk openly and often about how women don’t belong in the workplace.8
An employee made comments to the female staff about his opinion that women didn’t belong in the workplace, how men didn’t like to work with women, and how women brought their emotional baggage to the workplace. In that case, a court decided that a jury could conclude the employer created a hostile work environment by, among other things, denigrating women’s role in the workforce. If you heard the comments on an episode of Mad Men, chances are it is probably not appropriate for the workplace.9
6. Make sure your sexual harassment policy lacks a clear reporting procedure.10
As previously mentioned, an employer can sometimes have a defense to a claim of sexual harassment against the organization if it has put certain measures in place to prevent and correct the harassing behavior. One key piece of that procedure has to be a system to allow employees to report harassing conduct. If the policy is not clear and people don’t know how to report, or reporting is too difficult or embarrassing, when they don’t report, the company is going to have a harder time making the argument that it was the employee’s fault for not asking the employer to intervene.11
7. Fire the alleged victim without giving her a chance to tell her side of the story.12
In he-said, she-said cases, make sure to get all the facts and give both the alleged victim and the alleged offender the chance to tell his or her side of the story and present evidence. In one case, an employer fired an employee who complained of sexual harassment after talking with the alleged offender, but before giving her the chance to rebut his version of events. As it turned out, the alleged offender had lied and fabricated evidence. When a lawsuit was filed, the court was not too impressed with how the employer handled the investigation.13
8. Joke about how a top individual treats female colleagues, but don’t discipline him.
In many of these recent, high-profile cases, it was an open secret how female colleagues were treated, yet the organization in charge did nothing to stop it. Failure to address issues when they occur can come back to haunt an organization. Especially when everyone knows that everyone knows.14
9. Create a culture of silence in the organization.15
Another way to end up losing an otherwise good defense to a claim of sexual harassment is to permit a “code of silence” type environment to persist. Even if your organization’s policy outlines how complaints are to be made and “encourages” people to come forward, if this is not how it works in practice, litigation will probably be harder-fought. You don’t want evidence that there is no point in bringing complaints in your company, because the response is anything from subtly dismissive to outright hostile. Instead of subtly or blatantly discouraging people from speaking up about what they experience or witness, foster a culture of truth and transparency.16
10. Force the complaining employee to report to the harasser.17
In some cases, employers have not accounted for situations where the harasser is the employee’s supervisor or another top official who is normally charged with receiving complaints. The complaining party should not be forced to confront their harasser as a necessary step of making a complaint. While it is good to encourage people to work out conflicts and follow a chain of command, forcing further interactions with a sexual harasser is not a good way to protect either the employees or the organization. Every reporting policy needs to have alternate ways to report. And during an investigation, you may need a safety plan that keeps the reporter away from the alleged offender, even if it means a temporary transfer or administrative leave. (Be careful to set up anything like this carefully so it is not retaliatory to the reporter.)18
1Kramer v. Wasatch Cnty. Sheriff's Office, 743 F.3d 726, 745 (10th Cir. 2014)