Sexual Harassment Questions
jules2001
100 Posts
I know this may seem like silly questions, but...I am preparing some additional sexual harrassment training for my supervisors. I have already been asked a few questions that I am not sure of the answers.
1. If there is a claim, the company has gone through all of the proper moves and found the case inconclusive. The harassee decides to sue anyway, can he/she sue the company and the accused harrasser or just the company. I have read numerous places about what a company has to do, but how can an employee (supervisor or not) protect him/herself from being sued. Other than the obvious of 'don't harrass in the first place'.
2. I have an employee who was accused and things were found inconclusive. The accused claims he never did it, company followed proper channels. Now this employee is concerned that because he was accused, albeit falsely, it will always be on the minds of his supervisors and will effect his future with the company. It seems to me that it would always be on HR and supervisors mind and would, even if not intentionally, effect the employee. Is that preventable and how? If he feels it does efect his future, does he have recourse?
1. If there is a claim, the company has gone through all of the proper moves and found the case inconclusive. The harassee decides to sue anyway, can he/she sue the company and the accused harrasser or just the company. I have read numerous places about what a company has to do, but how can an employee (supervisor or not) protect him/herself from being sued. Other than the obvious of 'don't harrass in the first place'.
2. I have an employee who was accused and things were found inconclusive. The accused claims he never did it, company followed proper channels. Now this employee is concerned that because he was accused, albeit falsely, it will always be on the minds of his supervisors and will effect his future with the company. It seems to me that it would always be on HR and supervisors mind and would, even if not intentionally, effect the employee. Is that preventable and how? If he feels it does efect his future, does he have recourse?
Comments
If you hear nothing else, then the matter is closed. If another woman/man complains about the alleged harasser, launch another investigation. If the allegations sound much the same as previous, the company will have to make a judgment call. Some companies will give the alleged harrasser a written warning at this point, stating if it receives any other complaints, the harasser will be terminated. The idea being it that flies in the face of believability that three different individuals would complain about the same type of behaavior.
As long as companies address harassment when it occurs, does not turn a blind eye to harassment and documents all investigations well, the EEOC will usually find that the company is addressing harassment when ever it knows about it. If it's a supervisor, the EEOC is much more strigent about people in positions of power harassing others.
A few other things you might want to consider when doing an investigation is to question others of the same sex in the work group to see if they had ever had any treatment by anyone in the work group that made them uncomfortable or that was unwelcome. Do not ask about the harasser specifically. If he/she is doing this, chances are he/she is doing it to others and it will come out when you ask. If no one else complains, the company is probably on pretty firm ground to say it did a good investigation. If the person alleging the harassment reports to the alleged harasser, you might also consider offering him/her a voluntary transfer to another work group. Do not make him/her transfer or it will seem as though you are punishing him/her. If he/she does want the transfer, have him/her sign something that says he/she is requesting a voluntary trasfer to X work group.
Hope that helps. If you want to discuss further, feel free to call me at 615-371-8200.
Margaret Morford
theHRedge
Basically, the trend is on inconclusive findings is to tell both parties "no substantiation and closing investigation."
The employer then tells the complainant, "if you have complaints in the future, let us know immediately because we won't tolerate sexual harassment."
The employer tells the accused, in essence, "well, we couldn't provde anything...but we're gonna put you on notice anyways, because we're gonna go over our sexual harassment policy with you right now. If you do it AGAIN, and we can prove it, you'll be fired [it will be easier for us to get you out the door because we're telling you this now"].
Further, "to show you that even though we can't prove it, but we think you're doing it, we're gonna let the employee transfer to another supervisor" --- something the employer probably doesn't do simply on the basis that an employee complains about a supervisor.
So, employers wind up damning the accused anyway.
On the other hand, if allegations are not substantiated, and both individuals are credible, and there is no history, and we caution the accused anyway, we should also caution the complainant against intentionally making false accusations. That's not to say the complainant intentionally made a false allegation. Right away, I'm sure everyone is saying, "but you'll frighten the complainant from making any more complaints by doing that, which is contrary to the intent of policy."
How many employers have in their policies that an intentional false complaint against an individual is a violation of policy and can result in discipline? Probably only a couple. I suspect EEOC frowns on that type of provision. Notice, I'm not saying making a complaint which cannot be substantiated...but saying, intentionally making a false complaint, if it's established in the course of the investigation of the original complaint. For example, it's established that the complainant gave date, time and/or circumstance that clearly couldn't have happened.
Oh, well, signs of the times. I dont have an answer, other than general agreement with what has been said already on the specifics of handling inconclusive findings, but clearly the general approach on "inconclusive findings" is not balanced and employers go a sizeable way to consider that the accused did it -- just that they weren't good enough to substantiate the allegation or the accused lucked out.
Under Title VII (the federal law), most jurisdictions hold that individuals cannot be held liable (only the company can be).
However, many states have laws that mirror Title VII, but provide for individual liability.
Also, the supervisor may be liable for other wrongs (called torts) like assault or intentional infliction of emotional distress.
Good Luck!
Question #1 - yes, then if there are enough facts for an attorney to get in front of a jury, the outcome will revolve around the credibility of both parties. An employer cannot protect themselves from getting sued. They can protect themselves from losing if they exercise good policy and practice in a consistent way.
Question #2 - some are inconclusive, some are inconclusive with probability. The probablility is created by an employees conduct on a daily basis. If an employee or manager conducts themselves in a business-like way by refraining from questionable behavior the chances of a complaint being made about that individual is remote, and if it is, the result from other employees is "I don't believe it", "Joe wouldn't do that" etc. etc. To an investigator that is a clue to be careful. On the other hand, if an individual can't control their behavior and a complaint is made, the response of others will be "I'm not surprised",etc.etc., and the individual has sealed their own fate by their conduct.
The chance of a false complaint being made against a good employee or manager is also remote. If a false complaint is made against someone who exhibits problematic behavior that employee put themselves in the position where the employer may need to assume, based on probability, in order to protect the rights of everyone else.
You cannot control what other people think about someone who has been involved in an inconclusive incident. You can control, to some degree, what might happen to that person in terms of promotion, etc by ensuring that decisions are made in a proper way. Frankly, I don't concern myself very much about what happens in this regard when it is an employee who can't control their behavior.
I guess the answer to my first question would be "yes, an employee could be sued also, depending on state."
The answer to my second question would be that the employees can not protect themselves from future retaliation, HR just needs to be consistent. My employees are concerned that they will never be able to move up in the company if accused, even if case is inconclusive.
The reason for the supervisors asking me is because we did have an allegation in the past that was found inconclusive (co. handling everything properly) - but the supervisors and other employees are fairly nervous still.