Sexual Harassment in the Workplace

Peter Kent
September 25, 2008 — 3,434 views  
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All employers are always responsible for harassment by a supervisor that culminates in tangible employment actions. If the harassment did not lead to a tangible employment action, the employer is still liable unless it proves that reasonable care was exercised to prevent and promptly correct any harassment and that the employee unreasonably failed to complain to management.

A person qualifies as an employee's "supervisor" if the individual has the authority to recommend tangible employment decisions affecting the employee or if the individual has the authority to direct the employee's daily work activities.

A "tangible employment action" means a significant change in employment status. This includes promotions, demotions, and undesirable reassignments, decisions causing a significant change in benefits, compensation decisions and work assignments. If an employee refuses to act on sexual demands by a supervisor and thus a demontion occurs.

The tangible employment action can be viewed as a benefit or detriment to the employee.

The EEOC has recommended that all employers establish, distribute to all employees, and enforce a policy that prohibits harassment. The harassment procedures should outline preventative measures as well as disciplinary tactics taken if harassment occurs. The procedures should spell out how an employee can file a complaint. In most cases, the policy and procedures should be in writing. It is also recommended that employees sign a document that acknowledges receipt of the policies. The policy should state that the employer will not tolerate retaliation against anyone who complains of harassment or who participates in an investigation. The actions of a supervisor are not only legal on the supervisor, but the employer is responsible legally as well.

Small businesses (usually fewer than 15 employees) may be able to discharge their responsibility to prevent and correct harassment through less formal means. As long as the business conducts a prompt, thorough, and impartial investigation of any complaints and undertakes swift and appropriate corrective action, it will have fulfilled its responsibility to "effectively prevent and correct harassment."

The EEOC has recommended practical guidelines regarding the duty of employers to prevent and correct harassment and the duty of employees to avoid harassment by using their employers' complaint procedures. Following these guidelines do not relieve any employer of responsibility for the harassment of an employee by a supervisor.

The following provides an overview of the guidelines for both employers and employees:

Employers should encourage employees to report harassment to management before it becomes severe or pervasive. The employer should assure employees that it will protect the confidentiality of harassment complaints to the extent it is possible.
If an employer determines that harassment occurred, it should take immediate measures to stop the harassment and ensure that it does not recur. Disciplinary measures should be proportional to the severity of the offense. The employer also should correct the effects of the harassment by, for example, restoring leave taken because of the harassment and expunging negative evaluations in the employee's personnel file that arose from the harassment.
An employer has a responsibility to correct clearly unwelcome harassment regardless of whether or not a complaint is filed. For example, if there is graffiti in the workplace containing racial or sexual epithets, management should not wait for a complaint before erasing it.
An employer should ensure that its supervisors and managers understand their responsibilities under the organization's anti-harassment policy and complaint procedures.
An employer should designate more than one individual to take complaints and should ensure that these individuals are in accessible locations. The employer should instruct all of its supervisors to report complaints of harassment to appropriate officials. A third party employee of equal merit to that of a supervisor, though one outside of the chain-of-command should be put in charge of receiving complaints to ensure employees feel their complaints are received fairly.
Supervisors should not be the individuals in charge of receiving sexual harassment complaints as this individual may either be impartial or be the harasser.
When a complaint is filed, an employer should conduct a prompt, thorough, and impartial investigation as soon as possible. The alleged harasser should not have any direct or indirect control over the investigation.
The investigator should interview the employee who complained of the harassment, the alleged harasser, and others who could reasonably be expected to have relevant information.
Harassment must be stopped by an employer in order to further develop an environment of safety.
An employer should screen applicants for supervisory jobs to see if they have a history of engaging in harassment. To prevent the harassment from reoccurring, an employer should monitor interactions of this individual with other coworkers.
Keeping files on both an individual who receives a complaint or who files a complaint is important to record patterns on any individuals.
Employees must take reasonable steps to avoid harm from the harassment. If this occurs, an employee should act by following the harassment procedure to report the complaint.

An employer is not legally responsible for its supervisors' harassment if an employee does not file a complaint, unless the harassment resulted in a tangible employment action or unless it was reasonable for the employee not to complain to management.

An employee's failure to complain would be reasonable, for example, if the individual had a legitimate fear of retaliation. The employer must prove that the employee acted unreasonably.

If management does not act promptly to investigate any complaint and undertake corrective action, then it may be appropriate for an employee to file a charge. The deadline for filing an EEOC charge is either 180 or 300 days after the last date of alleged harassment, depending on the state in which the allegation arises. This deadline may not be extended because of an employer's internal investigation of the complaint.

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Peter Kent