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Common Mistakes Employers Make in Handling Complaints of Sexual Harassment

On December 20, 2017 by Schnader in Labor and Employment

By Scott J. Wenner

Other parts of this series have covered the proper affirmative steps to take to prepare for, investigate and respond to charges of sexual harassment. It is equally important to address the opposite set of concerns. What is it that employers commonly fail to do properly, or at all, when an employee makes a complaint of sexual harassment?

1. Failure to Promptly and Competently Investigate. Too often employers that receive a complaint of sexual harassment investigate the charge in an untimely manner and/or use an internal resource who is untrained or otherwise unsuited to the task. Often these problems occur because the employer has limited resources that already are stretched thin, and does not assign a high enough priority to investigating the harassment complaint. A prompt and thorough investigation could limit, or even prevent, liability for sexual harassment under Title VII and many state laws as well. More importantly, a proper investigation could head off a lawsuit entirely and resolve an underlying problem.

2. Failure to Investigate Verbal Complaint as ‘Policy’ Requires Written One. Employers sometimes have harassment reporting procedures that contemplate submittal of a written complaint by the complaining employee. However, a verbal complaint sufficient to notify a supervisor of facts suggesting an incident of harassment is sufficient to trigger the employer’s duties to investigate and take effective action. Likewise, the complaining employee’s refusal to file the written complaint required by the harassment policy will not allow the employer to argue that the employee failed to avail herself of its sexual harassment prevention process – a defense to liability under Title VII.

3. Failure to Understand that Sexual Harassment Does Not Require Sexual Content. Although somewhat counterintuitive, a female who is subject to persistent harassment of a non-sexual nature because she is female can make a viable claim of sexual harassment – that is, harassment because of her sex. A female worker may be subject to harassment through slurs or other abusive conduct by a supervisor who does not treat males reporting to him in the same way, and if she complains about the harassment, it must be promptly and fully investigated as sexual harassment and remediated if found to have occurred.

4. Failure to Handle Confidentiality Issues Properly. It is not unusual for a complaining employee to seek an assurance of confidentiality, but an employer cannot promise complete confidentiality to a complainant and still fulfill its obligation to investigate fully and fairly. Further, even where absolute confidentiality was not promised to the complainant, employers often make the mistake of sharing too few details with the accused, thereby depriving him or her of a fair opportunity to respond, affecting both the fairness and the completeness of the investigation.

5. Failure to Protect the Complainant from Retaliation, Real or Perceived. Among the most perilous situations in which an employer can find itself occurs in the period after a current employee has complained of unlawful harassment or discrimination. Not only does this bring added tension to a workplace, but the situation also is fraught with the risk of real or perceived retaliation against the complainant. Yet often in these circumstances, without thinking of the big picture, a supervisor will discipline the complaining employee or take other action towards her that she perceives as harmful to her interests without first consulting with Human Resources. And, of course, the timing alone gives the employee a colorable claim of retaliation regardless of the true motives of the supervisor in question. Therefore, it is a serious mistake for HR to fail to alert supervisors of this risk during the investigation process so they will avoid taking any action the complainant might view as adverse, and also know to consult with HR before taking any such action. Both training and coordination are key to avoiding retaliation claims.

To avoid these costly mistakes, businesses are advised to thoroughly train their managers and employees and consult with counsel when incidents occur.

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