Employer Responsibilities in Sexual Harassment Cases

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What Responsibilities Do Employers Have With Regards to Sexual Harassment?

Title VII of the Civil Rights Act of 1964 prohibits all forms of discrimination based on sex.  Sexual harassment is a type of workplace discrimination based on sex.  In sexual harassment, an actor makes sexual advances and proposes sexual offers that the actor knows that the recipient does not want.  The victim must actively show by firm remonstration, rebuff, and disapproval that the advances are not welcomed.  Any type of coy flirtation such as “playing hard to get” may kill a sexual harassment claim.

Note that sexual harassment doesn’t have to be men making advances on women. Sexual harassment can also include advances by women on men, men against men or women against women. Although sexual harassment is discrimination based on sex, there is no requirement that such harassment must be one specific gender against another specific gender.

In the event of a report of sexual harassment by an employee, employers have 2 chief duties:

  1. Take reasonable care to stop the sexual harassment, and
  2. Compensate the victim for sexual harassment that has occurred. 

To fulfill the first duty, senior managers, officers, and directors should arrange a formal meeting with the accused to get both sides of the story.

What Steps Should Employers Take To Counter Sexual Harassment?

If sexual harassment is highly suspected, the employer can distribute a pamphlet explaining sexual harassment, inform employees on how to make a complaint, and reaffirm the company’s firm policy against sexual harassment as pursuant with federal law. Complaints should be confidential and employees should be encouraged to report such harassment as soon as possible before it becomes severe.

If the company believes such harassment is taking place, it should then thoroughly investigate the matter by appointing an internal investigations committee. To fulfill the second duty, the employer must actually enforce its purported policy with an appropriately stern punishment.  This may involve termination or suspension of the alleged harasser.  One thing the employer should not do is fire the alleged victim, lest the employer be guilty of another tort: retaliatory termination.

Any complaints about sexual harassment should also be recorded in writing. Doing so will not only create evidence of commitment on the part of the employer, but also reveal any patterns of complaints about any employees. 

How Should An Employer Conduct An Investigation?

As stated earlier, the employer should appoint an internal investigations committee. However, such a committee should include at least one person outside the company’s management structure to help relieve any potential for bias or corruption. In addition, any investigation must not have either alleged perpetrators or victims conducting the investigation.

The investigation should include interviews with both alleged harassers and victims to help create a feeling of neutral and objective questioning.  During the investigation, it may be wise to separate the parties from one another. Such separation, however, should not significantly burden either the assumed victim or perpetrator because such an oppressive move might be considered retaliatory punishment. 

What If A Supervisor or The Employer Is The One Performing The Sexual Harassment?

The employer should maintain a way for employees to report harassment to more than one person. This ensures that immediate supervisors cannot use their power to silence alleged victims. If a direct employer is making the advances, victims are encouraged to call the police and find a lawyer.

Do I Need An Attorney If My Employer Fails to Stop Sexual Harassment?

Victims of sexual harassment are entitled to all available remedies and damages, such as loss of employment ability, loss of wages, medical expenses, emotional distress, and punitive damages. Such remedies are meant to punish the employer’s egregious and flagrant failure to stamp out sexual harassment in the workplace. If your employer is ignoring or allowing sexual harassment to take place at work, an experienced employment lawyer can help you recover your rights.

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Last Modified: 07-19-2012 10:28 AM PDT

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