Sexual harassment in the employment context may be defined as a form of sex/gender discrimination against another that includes unwelcome sexual advances, requests for sexual favors and other verbal or physical harassment of a sexual nature. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision.
One common element of the federal and most state laws is that an employee must first complain about the harassment. The process of making the complaint is often detailed in an employment or personnel handbook that the employee should have received upon joining the organization.
1. Discipline the Victim
Oftentimes, a company’s initial response to a sexual harassment complaint is to “get rid of it” quickly. This can be done by transferring the victim to another role or position. Perhaps the position or location is farther from the employee’s house, has less advancement opportunities or requires a skill set that the employee does not have, thus leading to poor performance evaluations down the road.
Although possibly well-intentioned, this action can create the potential for adverse employment action and needs to be avoided. This is a big mistake and can earn the employer an additional retaliation claim under federal as well as many state anti-discrimination laws.
2. Face to Face Meeting with Harasser
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It is hard enough for an individual who feels harassed, uncomfortable and threatened to come forward pursuant to a company policy, however, it is insensitive for a company to force the victim of sexual harassment to essentially sit down in a room with the harasser and confront him or her. Regardless of a company’s philosophy on investigations and “working it out”, a company should never force a complainant to confront the harasser unless and until both parties are willing participants.
If the company policy requires reporting up and the harasser is the victim’s direct report, there should be an alternative means of reporting for the employee.
3. Immediate Termination of Harasser
Not everything we hear is true, and this is coming from an employee-rights guy. In this poor economy, companies have legitimate business reasons for laying off workers. Although this author would like to assume that it is rare, on occasion a “victim” will either exaggerate or completely make up a story in order to retaliate against a company they do not like or to try to gain unearned and undeserved compensation from their current or former company.
Immediately terminating the alleged harasser without first performing a proper investigation seems to be wrong at a minimum and under certain state laws, could be illegal. Perhaps a suspension with pay and a prompt investigation is in order depending on the circumstances.
4. Ignore the Claim
Although it may seem obvious, one thing an employer should not do is ignore a sexual harassment complaint. This may happen in a company where the senior executives and even board members are aware of previous incidents of harassment by the very same offender, however, this harasser happens to be the “rain maker” and brings the company a ton of business. Perhaps the company continues to employ the harasser as it has made a business decision that the risk of lawsuits and a hostile work environment is outweighed by the benefit of retaining such rain maker.
This is a very risky proposition, especially if prior knowledge can be established. It is not suggested behavior, however, it is understandable and often practiced.
5. Continue without a Policy
Again, this may seem obvious, but it is important for all employers big and small to have sexual harassment policies in place. There are local, state and federal laws that govern companies of all sizes, from one employee to 1,000.
If a company does not have a policy in place in this day and age, it says that a company does not care about the employment laws that govern its actions nor the people who work there and is therefore grounds for awarding a successful plaintiff much greater damages.