Sexual Harassment: What Are the Right Steps for Employers and Employees?
The following article appeared in the November 2017 South Florida Legal Guide.
Employers should have a written policy that defines and prohibits sexual harassment and contains an effective complaint procedure. Employers should also train their employees to prevent sexual harassment, and lead by example. Training can include watching off-the-shelf videos or attending in-person training. Leading by example means making sexually charged conduct in the workplace unacceptable. And by “workplace,” I mean any place where employees congregate, including off-site meetings, office parties, and trade shows.
From a legal standpoint, employees who believe they are being harassed must use the complaint procedure contained in the employer’s policy. If the employee fails to complain and later files a sexual harassment claim, the employer may not be held liable, at least where there has been no adverse job action such as a termination or demotion.
But the practical reality is that an employee who complains about being sexual harassed may be putting his or her career in jeopardy. Retaliation in this context is illegal, but it happens, and victims of sexual harassment should consider the possibility of adverse consequences if they file a formal complaint.
When I consult with employees who are being sexually harassed, I explain both the legal landscape and the practical realities. If they want to make a formal complaint, I don’t discourage that. But they need to know of the possible fallout to make an informed decision.
An employer must investigate and take prompt remedial action against the harasser if the facts warrant it. But that’s easier said than done. An employer must ensure the investigator is properly trained to conduct an investigation and is not biased in favor of the accused. There’s a tendency for companies to fault the complainant, especially when the accused is a high-level executive. Investigators must resist that tendency and get to the truth.
Separating the complainant and the accused is often necessary while the investigation is pending. But employers must not retaliate against the complainant with a transfer to a lesser position. On the other hand, unless the accused has an employment contract, his legal rights are usually quite limited. An employer does not need proof beyond a reasonable doubt to take action against a suspected sexual harasser. Even if the results of the investigation are inconclusive, the employer can take action against the accused to mitigate its risk.