Shield Yourself from Liability

Shield Yourself from Sexual Harassment Liability

By Mary Jo McGrath, Attorney at Law
Reprinted from McGrath Educator’s Newsletter

Failure to take prompt remedial action in response to an employee’s complaint of sexual harassment significantly increases the risk of legal liability. A proper investigation can shield an employer and its managers from the most prevalent type of sexual harassment lawsuit.

Do You Know How to Protect Yourself?
Under federal law an employer is liable for “hostile environment” sexual harassment only if a harassed employee can show that the employer both 1) knew (or should have known) that harassment was occurring, and 2) failed to take immediate and appropriate corrective action once it learned (or should have learned) of the harassment.

Even when the conduct is very serious, thorough investigation and prompt, appropriate action can shield an employer. In a recent case, a male co-worker talked to a female employee about sexual activity, rubbed the plaintiff’s thighs, pressed his arm into her breast and grabbed her crotch while driving to a conference. The woman reported the incident to her supervisor. After an investigation the male co-worker was placed on probation for three months with a warning that future misconduct would result in discharge.

The woman quit, then sued her employer. The court approved dismissal of her case because the employer had taken prompt, effective steps to investigate and took reasonable disciplinary action to remedy the sexual harassment.

When to Investigate
An employer is obligated to investigate when either the person who was harassed or anyone else reports that inappropriate conduct is occurring, although the term “harassment” may not be used. Even if there is no report, an investigation should be made when there are warning signs such as a supervisor’s observation of inappropriate talk or conduct, general office knowledge of harassing behavior or a request that inappropriate behavior cease. Again, it does not matter what the alleged victim wants. The employer must investigate and take appropriate corrective action.

Ferreting out sexual harassment is not an easy task. Experts have stated that failure to report is a typical and reasonable response to harassment. In fact, over 95% of the victims of nonconsensual relationships (both sexual and social) do not complain or report the problem because of their fear of reprisal or loss of privacy. The burden is on the employer to be alert and pursue issues when they receive information through alternate sources, including rumors.

Investigate and Do it Well
Costly jury verdicts against an employer may result from faulty investigations of sexual harassment claims, both by the complainants and by the alleged harassers whose punishment is based on insufficient evidence. A case in point involves an employee who was awarded $1 million dollars because he was terminated from his employment based on a summary investigation report. The supervisor who made the dismissal decision did not know the actual facts gathered by the investigator because he had only read the summary and not the underlying interviews.

Employers should choose the most appropriate investigator available for a specific case with full knowledge that the investigator may later be called in as a witness. It is not a good idea to assign the job to someone who is not specially trained in sexual harassment laws. Investigators must know which questions are legal to ask and which are not. They must also be skillful in interviewing techniques including an ability to establish rapport, to press for admissions, to understand interviewees and to take detailed notes which can be transcribed and reviewed by the final decision-maker.

It is unwise to assume that a manager in human resources innately possesses these qualities. These skills are acquired through training and experience. Be sure that your appointed investigator or investigation team receive the training necessary to protect you and your business from a costly lawsuit.

Spring 1998

(Editor’s Note: This article is general in nature and is not intended to replace professional legal advice by a specialist in education law.)

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