How to Prevent and Remedy Sexual Harassment in the Workplace (II)
By Katharine Batista, Offit Kurman
The Fourth Circuit has stated that its ‘cases have sought to distinguish between those situations that indeed present serious impediments to minority and female workers and those situations when human nature simply is not at its best.’ Ziskie v. Mineta, 547 F.3d 220 (4th Cir. 2008). If the highest federal courts struggle with the distinction, it’s not one you should take on after simply hearing a brief description of the alleged harassment.
In determining whether harassment is sufficiently severe or pervasive to create a hostile environment, the harasser’s conduct should be evaluated from the objective standpoint of a ‘reasonable person.’ There will be instances where the conduct complained of simply does not rise to the level of sexual harassment, and times where it certainly does. However, the best way to limit your company’s exposure is to take every complaint seriously. This means investigating the complaint.
Conduct an Objective Investigation
You need to move quickly when conducting an investigation, but you do not need to move so quickly that you forgo creating a plan. It may be a very simple investigation that consists only of speaking with the victim and the alleged harasser, or it may be a far more complicated investigation that requires speaking with twenty witnesses and touring multiple worksites. Either way, take the time to identify the best person to conduct the investigation, how it will be conducted and, importantly, how it will be concluded.
You may have your in-house or outside counsel investigate, but think it all the way through potential litigation first. In the face of a sexual harassment claim, a company has a defence that it exercised reasonable care to prevent and correct promptly any sexually harassing behaviour. This is established by showing the company’s response. Issues often arise when attorneys investigate communications that would otherwise be privileged, as attorney-client communications are needed to support the employer’s defence. This can be a complicated problem that requires forethought.
Take Remedial Action
Far too often a company investigates a complaint, writes beautiful, clear summaries of every interview and then keeps them all in a folder that never sees the light of day. You must follow your investigation with a conclusion. It may feel daunting because so often it’s a credibility determination and it’s natural to fear being wrong and damaging either the complainant or falsely accusing a harasser.
Grit your teeth and do it. You can have multiple people consider the investigation and make the determination, but you need to draw a conclusion. You do not have to be right to avoid liability; but your decision has to be well-reasoned. After you make a determination based on the investigation, make an action plan.
This may include disciplining the alleged harasser or harassers, or it may involve discussing the investigation with the complainant and advising that the company did not find inappropriate conduct. Either way, the complainant should always be notified about the outcome of the investigation.
Published: May 2018 l Photo: zinkevych - Fotolia.com