Sexual harassment in the work place is a topic discussed in every board room and by the lawyers that represent them. The last year has soon an explosion of information about workplace misbehavior and untold stories of abuse and exploitation. It’s important to take a step back and examine some of the rules and considerations when addressing an allegation of sexual harassment in the work environment.
First, only employers of a certain size are covered by these guidelines. It’s important to check in your jurisdiction to understand exactly what the requirements are.
Secondly, not all employees are covered under most harassment laws. For example, unpaid interns and independent contractors do not qualify.
There are also caps on damages that can be recovered in these types of cases, both for compensatory damages (damages designed to compensate a person for harm or distress) and punitive damages (damages designed to “punish” someone who’s done something wrong).
Other remedies may also be available which need to be “exhausted” (ie; tried before moving to litigation). And deadlines for filing a case are also an important consideration.
According to legal experts, sexual discrimination can take the form of a “hostile work environment”, created by severe or pervasive sexual harassment or it can involve a “quid pro quo” where sexual favors are required in exchange for some other work benefit (such as a promotion). This includes both same-sex harassment and opposite-sex harassment. LGBTQ individuals are protected under these guidelines who are discriminated against based on their sexual orientation.
There are many gaps which allow some harassment to “fall through the cracks”. Some of these gaps are:
Limitations on the size of business (ie; small businesses (typically under 15 employees) are exempted.
Independent contractors. Much of the workforce is now employed as independent contractors who don’t enjoy any of the protections an employee receives against sexual harassment.
Lack of Employer Accountability: It is often the case that employers to not appropriate responds to these allegations.
Lack of Individual Liability: Most typically, companies are sued, not individuals.
Recovery Caps: Even when a business is held liable there are caps to any awards a claimant may seek.
Employer-imposed Secrecy: Some employers operate an environment of secrecy which curbs individual’s ability to succeed with a claim.
Mandatory Arbitration and Class Action Waivers: Many employment contracts now require any claim against the employer to be settled through arbitration, thus denying a claimant their day in court. Some employers also require employees to waive their ability to join a class action against an employer.
So, what are the steps to responding to a complaint of sexual harassment? Here some helpful guidelines:
Respond: Do not ignore a complaint. Answer the phone, or the door, respond to a voicemail or email. Do not let a complaint linger or fester. A quick response is most effective.
Make an initial assessment: Is the person making a complaint, or just “complaining”. Is this a genuine sexual harassment issue, or does it fall under some other workplace rule? Don’t ignore complaints or wait for a lawsuit, and don’t ignore “off the record” complaints. Any complaint that legitimately outlines sexual harassment on or off the record is real and needs to be investigated. Make sure to follow up on all complaints. Identify all the allegations (who was involved? what happened, when did it happen, etc.). Review all company guidelines to see if there was a violation of company policy or the law.
Determine whether an investigation is necessary: Determine the scope of the investigation (who should be involved, what parties should make statements), select an investigator (internal vs. external – there are reasons to employ both), should the investigator be a law firm or a lawyer?,
Communicate: It’s important that the parties involve understand what’s happening through good communication. You may consider separating the complainant from the person being investigated. It’s also important to maintain the integrity of the investigation by ensuring privacy, managing cross-communication among employees, and employee protecting productivity.
The Investigation: You should make sure to request and review key documents when interviewing the complainant. When interviewing the accused think carefully about what to reveal about the accusations. Decide how you will respond if the person asks “Do I need a lawyer?”. How will you corroborate the story (the “he said, she said problem)?
Post-Investigation: What are the investigations findings? What do you think actually happened vs. what has been alleged? Were the violations of company policy? Do not consider whether there were any laws broken, that is a job for the company lawyers or outside counsel. Make sure your report is detailed, confidential, and accurate.
The Response: Decide what type of response is required. Termination, discipline, re-training? It’s important to communicate the results to the complainant and to the named harasser.
Following these basic steps can help you deal with a workplace claim of sexual harassment that is fair to both the claimant, fair to the accused, and also protects the company.