Sexual harassment claims may be down overall, but these recent cases show it’s as expensive as ever to get caught on the wrong side of a harassment complaint.
The Equal Employment Opportunity Commission reported receiving 11,364 sexual harassment complaints in 2011, down from a high of 15,889 in 1997.
But don’t go hanging up the “We beat sexual harassment” banners yet. Here’s just a small sample of the myriad sexual harassment cases settled or decided this year that cost companies a boatload of time and money:
- The National Guard was ordered to pay a former staffer $231,000 after failing to investigate her complaints of sexual harassment. The worker claimed that her colleague repeatedly harassed her, including slapping her on the buttocks.
- A female firefighter was awarded $1.7 million after being fired for complaining about sexual harassment that came at the hands of her supervising lieutenant.
- Nearly $200,000 will be paid out to a former Atlanta school district bus driver who claimed her manager exposed himself to her, tried to have sex with her and then fired her after she refused.
- A former public pool lifeguard was awarded a whopping $3.5 million after she claimed her manager propositioned her and ogled her in her bathing suit. She complained to six separate supervisors — none of whom took any action — and then was fired.
You get it: Sexual harassment ain’t going away anytime soon. So how should you stay ahead of harassment?
If a supervisor’s behavior puts the company at risk for a lawsuit, you not only have the latitude to step in and say something, but you also have an obligation to step in and say something.
Is the behavior hostile? Discriminatory? Harassing? Unfair or showing favoritism?
Even an answer of “maybe” is justification enough for you to have a sit-down with him or her. Just be sure to explain the problem in the context of the law — not in the context of management styles.
Also, it’s always a great idea to make time to audit your harassment policies. Successful anti-harassment in the workplace polices include elements such as:
- a clear, well-publicized “zero tolerance” policy
- more than one avenue for employees to report problems
- guidelines explaining the discipline that employees who harassed others would face
- training employees on policies, and
- actively enforcing policies.
The harassment that wasn’t
Here’s a perfect example of why you should always take sexual harassment complaints seriously.
Take the case from late last year of the male boss who smacked his female subordinate on the butt.
The court said the boss got off the hook because of “why” he smacked her on the butt and the lack of past inappropriate actions.
A smack on the butt isn’t sexual harassment when certain conditions exist — but that situation doesn’t occur very often.
In this case, there were several factors:
- The male manager had never touched her or spoken to her inappropriately
- No one said they’d ever seen the manager behaving inappropriately with other employees
- The woman who complained said she’d never had difficulties before with her boss, and
- The woman said she didn’t believe the smack was intended to hurt her, and it wasn’t sexual.
Why did he do it in the first place?
The manager was excited that the woman had pulled off a difficult sale, and he was in a celebratory mood.
The most important aspect of this case, though, is the way the employer handled the case and protected itself from repercussions.
The firm took the sexual harassment complaint very seriously and investigated it. The supervisor was disciplined for his behavior.
The woman maintained harassment, but her claim was unsupported, the court said.
Main reason, according to the court: The employer avoided characterizing the woman’s complaints; it described her charge in neutral language. The court said the supervisor’s actions “while inappropriate,” weren’t “actionable.”
But it’s a cautionary tale: When someone complains of harassment, a company isn’t necessarily off the hook for conducting its own investigation and punishing someone.
Employers must tread carefully in describing the investigation and how it was done, and be especially considerate of the language it uses in discussing the claim.
Frivolous sexual harassment complaints
Another sticky sexual harassment area: employee harassment complaints that appear to be unfounded.
Let’s say you’re about to discipline an employee who then files a frivolous claim of sexual harassment to try to avoid the discipline. Are your hands tied?
Employees can’t just play the harassment card when they’re in trouble, courts have ruled. To make sure you’re covered, however:
- Establish a false-claims policy. Have your written policies flatly prohibit making false claims. Don’t go heavy-handed on this; underscore that employees’ claims will be investigated in good faith and that there are similar prohibitions on retaliation.
- Investigate and document. If you end up firing or otherwise disciplining an employee for a false accusation, you’ll want to be sure the investigation was thorough and documented fully.
- Use disinterested parties to investigate. Make sure anyone involved with the investigation (including yourself) has as little connection as possible with the accused or the accuser.