In the wake of the #MeToo movement, there has been a surge in the number of sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC).
In October 2019, the EEOC reported its fiscal year 2018 statistics showing that sexual harassment charge filings increased by 13.6% over the previous year; reasonable cause findings increased by 23.6% to nearly 1,200; and the EEOC recovered nearly $70 million for the victims of sexual harassment through administrative enforcement and litigation, up from $47.5 million in 2017.
In connection with these statistics, the EEOC has ramped up its role as enforcer, educator and leader in preventing workplace harassment. Given the dramatic increase in sexual harassment filings – and the focused efforts of the EEOC – it is incumbent upon employers to create a workplace culture that encourages the reporting and investigation of sexual harassment complaints. By focusing on the identification and prevention of sexual harassment in the workplace, employers can reduce their exposure to liability, and foster a professional, safe and respectful workplace environment.
Embrace (don’t avoid) the sexual harassment investigation.
When faced with a sexual harassment complaint, some employers make the mistake of failing to investigate or engaging in a perfunctory investigation, neither of which will protect the employer from liability. Under federal and state laws, certain affirmative defenses are available to employers who take reasonable steps to prevent and promptly correct sexual harassment in the workplace.
For instance, provided no adverse employment action has been taken against the complainant, the employer may assert such a defense if it conducts a prompt, thorough and impartial investigation of the sexual harassment complaint and takes appropriate remedial action, as necessary, to ensure that the complained-of conduct does not recur. Thus, depending on other factors, the investigation and the remedial action taken as a result of the investigation assists in forming a shield for the employer, which may ultimately insulate the employer from liability.
The investigation must be prompt, thorough and impartial.
Employers who fail to properly conduct a prompt, thorough and impartial investigation may be prohibited from asserting such a defense. An investigation that is perfunctory in nature or a sham, i.e., “I’ll talk to Chuck (the accused) – I’m sure he didn’t mean anything by it,” will not meet the “thorough” and “impartial” requirement. One that is unnecessarily delayed for several weeks may not meet the “prompt” requirement. Additionally, certain situations compel the use of an independent investigator to ensure impartiality, such as when the accused is the company’s CEO and the complainant is his/her assistant. Other circumstances may also require an independent investigator, such as when multiple complainants are involved; when the allegations concern extremely egregious conduct, such as sexual assault; or when the conduct has gone unreported for long periods of time. Although there can be some variation in the investigation depending on the particular circumstances of the complaint, every investigation must be prompt, thorough and impartial.
What about the “troublemaker” employee?
It is never acceptable for an employer to make a precursory, subjective determination that an employee alleging sexual harassment is lying or that such employee’s claim is otherwise unworthy of investigation. A common mistake made by employers is to determine, for example: “Bea has always been a troublemaker and complainer at TCorp. We didn’t investigate her complaint of sexual harassment because we knew it wasn’t true and didn’t want to waste company time and money.”
The employer may ultimately determine through investigation that Bea’s complaint was falsified or misconstrued, however, that determination should never be made prior to the investigation. On the other hand, the investigation could show that Bea was the third victim of the accused, a lower-level supervisor, who regularly grabbed the breasts of Bea and two other victims, rubbed his genitals against them as they worked, made sexually inappropriate comments and gestures to them on a daily basis, and threatened to terminate their employment if they reported his conduct.
In this scenario, assuming TCorp had no knowledge of the harassment prior to Bea’s complaint, by conducting a prompt, thorough and impartial investigation and taking appropriate remedial action (termination of the accused in this situation), TCorp may be able to avoid liability and limit damages if Bea were to file a lawsuit. Moreover, by investigating Bea’s complaint, TCorp demonstrates to employees that sexual harassment is not tolerated in the workplace, and fosters a workplace culture that encourages reporting and respect.
Alternatively, if TCorp does not investigate Bea’s complaint, and thereafter the accused harasses two additional employees, TCorp’s knowledge of Bea’s complaint combined with its failure to investigate could easily result in TCorp being found liable for the sexual harassment claims of all five victims, thereby potentially exposing it to a financially ruinous outcome.
But we only need to investigate claims that complainants want investigated, right?
Other common mistakes made by employers include not investigating harassing behavior employers know of but has not been reported, and not investigating allegations of harassment based on the complainant’s desire to keep the matter confidential.
An employer is imputed with “knowledge” of harassment and is legally obligated to investigate it when a member of management observes the harassing conduct first hand or learns of it through a witness other than the complainant. Likewise, an employer is obligated to investigate if it receives a complaint of harassment but the complainant wants to keep it confidential and does not want an investigation. The defense of “we knew about it but she didn’t want us to investigate it” or “we saw it but no one ever reported it” does not relieve an employer from its legal obligation to protect employees from known harassment in the workplace. Indeed, if employers were able to rely on such a defense and avoid liability, it would be completely contrary to an employer’s responsibility to create a harassment-free workplace that encourages reporting and investigation and fosters a workplace culture that supports a safe and respectful work environment.
Employers who fulfill these responsibilities can improve their workplace culture and reduce their potential risk of exposure to liability related to claims of sexual harassment.
This article was featured in the November 2019 issue of the Traverse City Business News.