Increasingly employers are dealing with allegations of sexual harassment. The recent case of Gyulakian v. Lexus of Watertown, highlights the importance of promptly and properly investigating allegations of sexual harassment. In Gyulakian, a jury awarded an employee a verdict which included $500,000 of punitive damages. While the amount of punitive damages was later reduced by the judge, this case underscores the potential liability of employers regarding claims of sexual harassment.
What is Sexual Harassment?
The Equal Employment Opportunity Commission (“EEOC”) provides the following information regarding sexual harassment.It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.(Sexual Harassment, EEOC, https://www.eeoc.gov/laws/types/sexual_harassment.cfm (emphasis added).)
What is my Liability as an Employer?
The EEOC also describes the potential liability of employers as follows:
The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that:
1) it reasonably tried to prevent and promptly correct the harassing behavior; and
2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or
should have known about the harassment and failed to take prompt and appropriate corrective action.
When investigating allegations of harassment, the EEOC looks at the entire record: including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis.
(Harassment, EEOC, https://www.eeoc.gov/laws/types/harassment.cfm (emphasis added).)
What Policies Should My Organization Have in Place?
Companies should keep three things in mind when reviewing their policies and procedures: (1) Prevent; (2) Protect; and (3) Probe.
Company policies should seek to prevent instances of sexual harassment before they happen. Companies should regularly (at least yearly) have trainings regarding sexual harassment. This training should focus on helping employees understand what constitutes sexual harassment, what to do if they are harassed or observe harassment, and the consequences of sexual harassment.
The company’s policy should clearly define sexual harassment and provide appropriate examples. Additionally, company policies should describe the company’s reporting procedures. Finally, the policies should also reflect the penalties for harassment and include that such penalties include immediate termination.
Company policies should also focus on how to protect employees. This may include an analysis of the company’s work sites or other places where harassment may occur and design policies and procedures to provide built in protections for employees. This may include posting notices, installing windows, or monitoring communications. Note that any preventative measures also need to comply with state and federal law. Companies need to think about what might prevent an employee from reporting harassment. For example, if the harasser is a supervisor is there someone else at the company to whom the employee may report the harassment.
Companies need to have procedures in place to investigate allegations of harassment before an allegation is reported. Be aware that if a company conducts its own investigation, the investigation will likely become discoverable if the employee sues. For this reason, it is important to consult with legal counsel in developing investigation procedures and in carrying out the investigation. Based on the circumstances of the case, it may be important for there to be an independent investigator.The investigator should remain neutral and thoroughly investigate the allegations. Even if the allegations seem unusual or unlikely, the company needs to promptly and throughly investigate the claims. This investigation should include talking with the parties, collecting relevant documents and communications, and interviewing other witnesses. It is important for investigators to understand the allegations of both sides and compile a complete list of who is involved, what happened, when it happened, who witnessed it, and what records if any relate to the allegations.
The Investigation is Over, Now What?
A decision needs to be made and documented. This means documenting the evidence, findings, the basis for those findings, and consequences. The company also needs to be consistent in its approach. If the company has adopted a “zero tolerance policy” it needs to apply that policy uniformity or it could run the risk of additional claims.
When in doubt, Get Advice
At all stages of the process, companies should consult with their legal counsel and Human Resources department. Having the necessary policies and procedures in place before an instance arises will help prevent costly litigation and liability and help a company prevail should litigation ensue.