Who won this case? She says boss didn’t do enough to stop harassment
October 8, 2009 by Jim GiulianoPosted in: Employment law, In this week's e-newsletter, Latest News & Views, Who won?
An employee claims her boss didn’t do enough to prevent her from being the victim of sexual harassment. The supervisor’s defense in court: She wouldn’t cooperate with my investigation. Who won this real-life case?
The scene:
“But Jill refused to cooperate with me about the sexual harassment complaint,” Ned exclaimed to Carol, the HR manager.
“Did you tell her that, as her supervisor, you’d investigate and protect her?” Carol asked. “That’s your first responsibility.”
“Yes,” he replied, “but she said she didn’t want to ‘drag everyone through that.’”
“OK, let’s talk about the sexual harassment problem itself,” Carol suggested. “Jill says the guy you assigned to train her started groping her and calling her at home.”
“Right,” Ned nodded, ”and I told her we’d separate the two of them and investigate, but she said, ‘No, let’s just leave things the way they are. I don’t need that aggravation when I’m just starting.’”
“Until she just stopped showing up for work, right?” Carol asked.
“Exactly, and she wouldn’t return my calls when I left messages on her cell,” Ned said.
“I guess the reason she didn’t is right here,” Carol said as she held a letter. “It’s from Jill’s lawyer, and it says she’s suing us for sexual harassment by someone she worked under and because we forced her to quit.”
The company argued in court that Ned was Jill’s actual supervisor and that he had offered to help.
Did the company win?
Decision
Yes, the company won when a judge dismissed the case.
Although the judge agreed the employee was the victim of sexual harassment, three key points were in the company’s favor:
Her actual supervisor had offered help and a promise to investigate
The employee refused to cooperate with her supervisor to solve the problem, and
The harassing employee – while in a senior position – wasn’t the victim’s supervisor, and so had no hiring-and-firing power.
Given those facts, the judge said, the employee couldn’t justify her claim she was forced to leave the company.
That sort of claim holds water usually only when a supervisor refuses to help.
So, what do you do?
So when an employee informally complains but refuses to take things any further, what should a supervisor do?
The most direct answer is: A supervisor should go to HR with the complaint and consider investigating even without the employee’s cooperation.
The bottom line is there’s a potential legal problem on your watch, and you have to address it. Yes, you may win in court if you ignore the problem, but who wants to go to court?
[Based on: Merritt v. Albemarle Corp.]
[Dramatized for effect]
October 12th, 2009 at 9:01 am
I have had a similar problem where the employee insisted that no action be taken. We investigated enough to convince us there might be a problem. Then we called the harrassing employee in as a means of educating him on what was and what was not appropriate behavior stating that it was based on our observations and an attempt to prevent any potential problems. Then we reassigned that employee but watched him closely. It eliminated the situation and put enough pressure on the harrassing employee that he changed his actions in fear a receiving bad reviews. Harrassment happens no matter how hard management trys to prevent it, but management must act as a watchdog not just an investigator after it happens. We have found that once the employees realize that management is aware of their behavior, they try to police themselves to prevent management from getting involved.
HRM
October 14th, 2009 at 10:16 am
In a recent case an employee was behaving crudely and making suggestive comments to the ladies. We only found out about it when a young lady was released due to her attendance and her lawyer letter arrived within a week. During the investigation several ladies validated the things that were said and the harassing behavior of the employee. I am not sure if it was peer pressure, fear of going against another employee or just stubbornness but several ladies said that they were big girls and have heard worse so it was no big deal. If it had progressed further then they would have complained. The employee was terminated, sexual harassment training was done for the entire facility and our “no tolerance” policy to harassment was clearly communicated. The case never went to court because we investigated once we were made aware and swiftly terminated the offending employee. It was just disappointing to hear that for several months ladies were subjected to his harassing behavior and they chose to not report his actions. This allowed him to subject even more victims to his crude comments because they realistically condoned his actions and allowed it to continue by not reporting it.
October 14th, 2009 at 1:14 pm
What do you do when you receive an anonymous tip that something is going on? Do you ignore because it is anonymous? or do you investigate?
October 19th, 2009 at 12:32 pm
Anonymous or not you need to investigate. Sometimes people are too shy or embarrassed to say anything but if they are asked about it by the right person in the right way they will open up about it. Tips are usually given for a reason and should never be ignored and you are just as guilty for ignoring the tip as you would be for ignoring the problem.