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Could Your Sexual Harassment Policy Land You in Court?

A recent case involving FedEx teaches employers to cover all the angles in sexual harassment policies

Posted by Dawn Lomer on January 8th, 2013

Imagine a policy that stipulates that victims of harassment must report the harassment to their harasser. It sounds ludicrous, but FedEx has provided an example of such a flawed policy in a recent case before the courts.

Four female call center employees filed a lawsuit against the company alleging that their supervisor sexually harassed them. They alleged that the supervisor touched them and coerced sexual acts from them.

Policy Not Followed

FedEx requested that the case be dismissed because the women had not followed the company’s written sexual harassment reporting policy. The policy stipulated that employees should report sexual harassment to “management or human resources”. There was no mechanism in the policy, however, for employees allegedly being harassed by a supervisor to bypass that supervisor and report the misconduct higher up the chain of command.

The court ruled that the women were excused from reporting the misconduct because the FedEx harassment policy was flawed, and the four complainants testified they were afraid of losing their jobs. The court felt that the women did not have a viable alternative reporting mechanism to allow them to report misconduct without confronting their harasser.

Alternative Means of Reporting

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“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,” says Jared Jacobson, Attorney and founder of Jared Jacobson Law, LLC.

“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,” he says.

Clearly, a sexual harassment policy that doesn’t allow employees to bypass their supervisors when reporting misconduct is incomplete and could get your company into serious trouble. A sexual harassment policy must provide an alternative option for employees who are being harassed by their supervisors to report misconduct to someone other than their harasser. And employees need to know that there will be no retaliation for reporting misconduct higher up the chain of command.

Where Does Your Company Stand?

What mechanism does your company have for reporting harassment? Do you have an open-door policy that makes employees feel comfortable going above their supervisors to report misconduct? More importantly, is this policy conveyed in writing? And do you stand behind your policy? An open-door policy is only as good as the guarantee that there will be no negative consequences for the employee who chooses to use it.

Dawn Lomer
Dawn Lomer

Manager of Communications

Dawn Lomer is the Manager of Communications at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.

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