Due to three key Supreme Court decisions on sexual harassment in 1998 (Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); and Oncale v. Sundowner Offshore Services, Inc., 524 U.S. 75 (1998)), it is important for employers to know how to minimize the chance of being held liable for harassment that violates federal and state discrimination laws. What applies to sexual harassment can easily be applied to other forms of harassment that violate discrimination laws, such as racial, ethnic, religious, age-based, and disability-based harassment. In all cases, liability can, under some circumstances, be unavoidable, and in other situations, it can be avoided, but in all instances, if proper steps are taken, it can be minimized.

The 1998 Supreme Court decisions had several key lessons:

  1. Any sexual harassment between any employees can lead to liability, not just a man harassing a woman, or a woman harassing a man, but also a man sexually harassing another man, or a woman sexually harassing another woman.

  2. If the harasser is in some kind of superior position in the company compared to the victim of the harassment, and a tangible job action occurs that is unfavorable for the employee, there is no way for the company to escape liability, even if it did not know of the harassment and had no way of knowing about it.

  3. If the harasser is in some kind of superior position in the company compared to the victim of the harassment, but no tangible job action occurs that is unfavorable for the employee, the company can escape liability if it can show that it was not negligent in allowing the harassment to occur. See the discussion below.

  4. If the harasser is not in a superior position in the company compared to the victim, the company can escape liability if it can show that it was not negligent in allowing the harassment to occur. See the discussion below.

How to Minimize the Risk of Liability in a Harassment Claim or Lawsuit

You will notice from the above points that a major weakness in a harassment claim involving harassment by supervisors against lower-ranking employees exists if a tangible job action results that is adverse to the employee. Make sure that authority to take actions such as termination, transfer, changes in shifts or duties, or changes in pay rests only with carefully-selected individuals, not with average supervisors, and that all employees know that! Further, you should ensure that any adverse job actions against employees are carefully reviewed before becoming effective.

You will also notice that a major defense to liability in a harassment claim or lawsuit is showing that your company was not negligent. The Supreme Court decisions reaffirm lower court rulings from around the country in stating that a company that takes certain steps can minimize the risk of liability for harassment:

First Step: Develop a Policy

Every company should adopt a clear written policy on harassment and make sure that every employee reads, understands, and agrees to the policy. The policy should:

  1. define harassment in its various forms;
  2. make it clear that no form of harassment will be tolerated;
  3. notify employees of how to report harassment;
  4. stress that it is not only a right, but a duty, to report harassment to responsible management;
  5. warn employees of the disciplinary actions that could result from violations of the policy; and
  6. provide a framework for investigation and remedial actions in harassment situations.

Concerning notification to employees of how to report harassment, the policy should provide for the situation of what to do if the alleged harasser is in the employee's chain of command. Many companies try to designate one specific employee, usually in the human resources department, to receive and handle all harassment allegations; the rationale behind that is to give employees the feeling that they will not have to put their jobs at risk by complaining to their supervisors, to encourage quality investigations by having a more neutral person handle them, and to ensure consistency in investigations and results.

Outside of the harassment policy context, your general personnel policy should make it clear to employees that ordinary supervisors do not have the power to hire and fire, to set pay or change pay, to transfer, to change shifts, or to deny promotions. Make it clear that such authority to take tangible job actions exists only with certain employees and that adverse job actions will be reviewed before becoming effective.

Second Step: Educate the Employees

Have all employees attend education programs to train them on the many forms harassment can take and how the company will help them respond to any such problems. The programs should go over the company's harassment policies in detail and ensure that each employee is familiar with the ways to report and deal with harassment. The company should place notices, in addition to the ones required under federal and state laws, reminding employees about the policy and of the ways to report harassment.

Third Step: Prompt and Effective Remedial Action

Take prompt and effective remedial action to prevent reoccurrences or retaliation. Such action can include separation of the employees by temporary reassignment or transfer or letting the complaining employee or alleged harasser have paid time off. Whatever you do, do not do anything that would seem or appear to place the complaining employee in an unfavorable position. You might seriously consider asking the complaining employee what he or she would like to see happen to provide relief or remedy in the short term. However, you are not obligated to do whatever the employee demands. Do not accuse the alleged harasser of harassment at this stage, since unfounded accusations can boomerang against your company in the form of a defamation lawsuit. Simply inform the alleged harasser that an investigation will take place. Document all the steps your company takes, and let the complaining employee know how important it is to you that they feel comfortable at work.

Fourth Step: Investigate Thoroughly

Treat each harassment complaint seriously. Let the complaining employee know that the complaint will be investigated and dealt with. It is fairly common for an employee to complain and then to ask that no investigation be done, either to spare the harasser some job trouble or to spare the complainant the trouble of going through a troublesome process. Never make the mistake of honoring such a request! Tell the employee that the policy requires an investigation and that one will occur, and then do the investigation.

The investigation should involve not only the complaining employee and the alleged harasser, but also any employees who might have witnessed the harassment. When questioning employees, do not start out by asking "did you see John harass Mary?", because they might have seen something they do not consider harassment, but that would still be a matter of concern. Ask witnesses if they were in a certain area on a certain date, whether they noticed any other employees there, whether other employees were doing something that was perhaps out of place or questionable, and exactly what it was that they saw. That way, you are more likely to get candid answers, and you may turn up evidence of wrongdoing you did not suspect. Document the investigation: who was questioned, when, where, who else was present, what was said, and so on. Remind anyone who is questioned that they are to keep the investigation confidential and that revealing the allegations or discussions to anyone else could violate other employees' rights to privacy.

Keep the investigation documentation in a separate, confidential investigation file separate from the normal personnel file. This is to minimize the chance that unauthorized people will find out about the allegations and possibly publicize them in such a way that your company becomes liable to the alleged harasser for defamation.

Fifth Step: Take Action and Document It

At some point, you will have to decide what happened and whether some action beyond the temporary steps you have already taken is necessary. The law does not require you to find that harassment occurred. If the investigation does not justify such a finding, let the complaining employee know of your conclusions, thank him or her for using your process, and reassure the employee that no retaliation or harassment will occur as a result of the complaint being filed. If the finding is that harassment occurred, take the appropriate action under your policy. Some harassment may warrant termination, but other forms of harassment may merit only a counseling of the harasser, a formal warning, a permanent transfer, a suspension, a demotion, or some other adverse job action short of discharge. Whatever you do, document it and place the documentation in the investigation file.

The question often arises of what the personnel file should reflect concerning action taken against someone disciplined for harassment. It is usually best to simply state in the personnel file that a certain action was taken for "violation of the harassment policy", or words to that effect, and to give a reference to further documentation in the investigation file.

Companies that follow these steps should find themselves in a much better position in court or before the EEOC in case of any legal action for harassment. Since the Supreme Court rulings are so clear that liability results from a tangible job action in the case of a supervisor harassing a subordinate, your general personnel policies should make it clear that authority to change the terms and conditions of employment is vested only in certain carefully-designated people and that ordinary supervisors have no such authority - all employees must be aware of these facts! In general, use your policy and your documentation to show that you did the best you could to ensure that the complaint was dealt with effectively and that the employee was fairly treated; that if harassment occurred, it was without any knowledge or approval on the part of the company; and that no tangible adverse job action resulted against the employee. If the employee quits without taking advantage of their rights under your harassment policy, you should argue that a reasonable employee would not have quit without affording the employer a chance to address their problems. If the employee quits without any notice whatsoever about the alleged problems, point that out and argue that your company had no opportunity at all to try to correct whatever problems allegedly existed.

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