Whether it’s Fox News, Uber or most recently, The Weinstein Company, sexual harassment claims are regularly in the news. However, you don’t have to own a big company or be famous to find yourself dealing with a sexual harassment complaint. For employers, these claims can result in significant liability as well as reputational damage and productivity and morale issues in the workplace. The best defense is to take affirmative steps to prevent and respond to complaints.

Preventing sexual harassment

The first step is for employers and employees to understand what constitutes sexual harassment. Under federal law, “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.” However, this definition needs to be translated into real life guidance for the workplace.

Employers must have appropriate policies and procedures instructing employees on sexual harassment and how the company will respond to it. The most common ways to do this include the following:

  • Employee handbook. The handbook should define sexual harassment and explain what behavior is unacceptable.
  • Employee training. Many companies provide instruction and give examples of sexual harassment through live lectures or on audiotapes or videotapes.
  • Reporting and investigation procedures. Employers should establish and communicate their procedures so an employee who has been sexually harassed knows where to go to report what has happened, and that the employer will take appropriate steps to investigate the matter and handle it appropriately.

Responding to complaints

Employers are required to investigate complaints. The level of investigation required depends on the circumstances of each case. Ideally, the employer should have a dedicated Human Resources person to conduct the investigation which could involve interviewing witnesses, taking documents, deciding what happened and making a determination with management. In serious cases, employers should hire an outside agency, either a law firm or a specific company that handles these types of complaints and allow them to do an independent investigation and issue a finding. Generally, along with the finding, the outside firm will also make a recommendation as to what should be done, which could include education, reprimand or even termination.

Effect on the employer’s liability

If the complaint is made against a co-employee who is on the same level or below the person making the accusation and the employer commences a proper investigation, the employer can be immunized from liability. However, if it’s a supervisor or owner, the employer is responsible for the acts even if it investigates and takes action. Although they may be liable either way, the better that the employer investigates the matter and takes appropriate action to stop the harassment, the less likely it is to be liable for the acts.

Other risks to employers

If an employer takes a negative action against someone making a claim, it can be liable for retaliation. By the same token, if the employer takes action against the harasser, there is also a potential risk of liability. Employers have to make an assessment of the claim, including the strength of the evidence that’s presented and the severity of the allegations and then make a judgment call. In many cases, the employer will choose education and reprimand over suspension or termination. But if it’s a severe case and it’s proven to be accurate, the right decision for the employer is to immediately terminate the employee.

Employers must be proactive in avoiding liability under sexual harassment laws. Establish appropriate policies and procedures and respond promptly and effectively to any complaints. In serious cases, consult qualified legal counsel.

If you are concerned about potential sexual harassment claims or you are facing a complaint, contact us for a consultation.

Interested in learning more about how to prevent and respond to sexual harassment claims? Listen to Jeff Ettenger’s interview on the Law You Should Know radio show.