Responding to Allegations of Sexual Harassment

Every employer dreads the thought of receiving a complaint alleging sexual harassment in their workplace.  The unfortunate reality is that it happens more often than you would think, and regardless of whether you believe the allegations, all complaints of sexual harassment trigger important legal obligations with which you as an employer must comply.

First, let’s make sure we understand what sexual harassment actually is.  The Fair Employment and Housing defines it as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser.

Here is an incomplete list of behavior that may satisfy the definition of actionable harassment:

Unwanted sexual advances
Offering employment benefits in exchange for sexual favors
Making or threatening reprisals after a negative response to sexual advances
Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoon or posters
Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes
Verbal sexual advances or propositions
Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations
Physical conduct: touching, assault, impeding or blocking movements

Assuming you receive a complaint alleging actionable harassment, the law imposes a duty upon you as the employer to take “immediate and appropriate corrective action” to prevent the harassment from continuing to occur.  Failure to take such action may result in your business becoming vicarious liable for the victim’s damages, even though the business had nothing to do with the harassing acts.

What constitutes “appropriate corrective action” will depend on the circumstances.  Without exception, however, the employer must conduct a “reasonable investigation” into the merit of the complaining employee’s allegations, This will typically require the employer to privately interview the accuser, the accused, and any potential witnesses to the harassment.  It should go without saying that the employer should rigorously document the investigation.

If the investigation reveals that the complaining employee’s allegations have merit, the employer has several options depending upon the nature and severity of the harassment.  For example, the employer may propose a written resolution between the parties, indicating that the issue is resolved and no further offensive behavior will occur. The employer may also wish to consider corrective action against the accused employee pursuant to the company’s disciplinary procedure. Termination of the harasser is not necessarily required; however, employers must carefully weigh the conduct and compare it with discipline for other similar offenses. Finally, the employer may consider transferring the accused or accuser to a separate department or work station, though if the accuser is transferred caution must be exercised to ensure they do not regard the transfer as retaliatory for submitting their complaint.

These general suggestions are not intended as legal advice, nor will their implementation necessarily prevent sexual harassment lawsuits being filed against your company.  However, by showing employees you act quickly and fairly when complaints are made, incidents of harassment will hopefully be reported quickly, thus minimizing the likelihood of long, expensive and emotionally-driven lawsuits in which there are truly no winners.