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Employers that ignore or fail to investigate sexual harassment will pay for it

September 5th, 2013  |  Lorene Park  |  6 Comments

By Lorene D. Park, J.D.

In the past two months, courts have rendered decisions involving truly jaw-dropping sexual harassment claims. In fact, just yesterday I read a case where a TSA employee who reported sexual harassment (including two assaults on airport property) was allegedly coerced into signing a pre-written statement indicating the relationship was consensual (Marugame v Napolitano). Other cases have included supervisors who call female subordinates “work wife,” “slave,” and other inappropriate pet names; who detail their sexual prowess and offer their services; and worse.

As deplorable as some of this conduct is, it is even more troubling when employers fail to respond to complaints, conduct only a minimal investigation, or even retaliate against the person complaining. Interestingly, most, if not all of the employers in these cases have sexual harassment policies in place. The cases thus make it obvious that merely having a policy is not enough — it has to be reasonable and properly enforced, and there must also be an effective internal procedure for grievances that allow employees to bypass supervisors when necessary. Here are some recent examples of how not to respond to a sexual harassment complaint:

Ignoring complaints. A female dispatcher who described her alleged harasser as a “peeping tom” and “a persistent pest” who refused to take “no” for an answer, texted her repeatedly, wore short shorts with no underwear, recited love poems, and showed up to her chemotherapy appointment uninvited, survived summary judgment on her hostile work environment and constructive discharge claims (Hollis v Town of Mount Vernon). Her repeated complaints to both the acting police chief and the chief who was on leave resulted in no relief. The acting chief told her the mayor would not fire the male dispatcher and the only thing she could do was take it to the town council. When she started to stand during that night’s council meeting, the acting chief pulled her down and told her that they’d handle it in the morning. They didn’t. He was eventually fired for a different reason, but by then the employee had already resigned.

Appointing harasser’s BFF to investigate. In Miles v Davita Rx, LLC, Inc, an administrative assistant at a dialysis clinic complained (to the wrong person apparently) about her supervisor’s repeated sexual comments and conduct. Among other things, he called her his “work wife” and his “slave,” rubbed her shoulders as she worked, and positioned himself so she backed into his crotch when she moved boxes. He also made sure to point out to his female staff that he could fire them at any time. Fed up, the employee quit. She also wrote a note to higher-level executives detailing the harassment and they responded by putting the alleged harasser’s “dear friend,” an HR manager, in charge of an investigation. That investigation consisted entirely of an interview with the alleged harasser, who denied everything. The employer’s motion for summary judgment on the employee’s sexual harassment claim was denied.

The slap on the wrist. In another case, a legal secretary who the law firm knew had survived a violent rape in the past was repeatedly sent sexual emails by one of the attorneys for whom she worked, notwithstanding her repeated objections (Elster v Fishman). One was an email, which was jokingly set up to appear to be from a client, inquiring about the size of the attorney’s penis. Another included a picture of a naked woman who he proclaimed was his new trainer. After the employee complained to an office manager, a partner informed her that she would no longer be on the distribution lists. However, the same attorney who sent the prior emails sent another with a picture of a naked woman wearing only a Santa hat, and a message stating “Says she knows you!” The employee complained again and the attorney was made to apologize (insincerely, she believed). Soon, a printed email was given to the secretary that referred to an interlude between the attorney and his wife. On these facts, a California appellate court found the trial court erred in sustaining the defendants’ demurrer to her sexual harassment and intentional infliction of emotional distress claims.

Pleading “he said, she said.” In Arabalo v City of Denver, a corrections officer complained that she had been drugged and raped by two deputies. Her immediate supervisor’s response was to say it was a “he said, she said” situation and should be kept under wraps. Meanwhile, another supervisor often asked the employee what she was wearing, requested she lift her shirt, and suggested she sit on his lap for a “big surprise.” In addition, when the employee complained of sexual harassment by inmates and requested a transfer, she was told that it was her job to endure it. Although she was later fired for what the court found were legitimate reasons (mishandling funds; falsification of documents) and most of her claims failed, her hostile work environment claim against the employer survived a motion to dismiss.

Laughing at the situation. Based on evidence that a manager called an employee a “dumb f*cking c*nt” each day he saw her; displayed images of nude women, repeatedly said women do not belong in the oil field; told the employee not to waste her time applying for a job because she had “tits” and “bros before hoes;” and got angry that she would not have sex with a customer’s employee, a court rejected an employer’s argument that the alleged harassment was not sufficiently severe and pervasive to support a hostile work environment claim (Crooks v National Oilwell Varco, LP). Moreover, the employer could not defend its inadequate response to the employee’s repeated complaints — a regional manager laughed and told her it was a “joke.”

Retaliating against the victim. Another gem of a supervisor (de facto supervisor in this case) told a parks and recreation employee that he “owned” her (Lindquist v Tanner). He also hugged her, kissed her, called her at home, and frequently urinated in her presence. After she complained to the parks commission, not only did the harassment continue, but her hours were reduced and discussions of possible future full-time work ceased. Her job was eliminated but the commission retained two other part-time workers who did not complain. The court denied the employer’s motion for summary judgment on her hostile work environment claim and her retaliation claim.

Best practices

Employers must do a better job of responding to sexual harassment complaints than the employers in the above examples. To begin with, have an effective anti-harassment policy and enforce it. At a minimum, a policy should state:

  • that the company will not tolerate sexual harassment in the workplace; define “sexual harassment” clearly and succinctly; provide examples (e.g., touching, suggestive jokes or comments, flirtatious gifts, obscene gestures, blocking free movement, leering, graphic photos or cartoons, questions about personal life);
  • that managers at all levels are responsible for preventing harassment and must immediately report complaints or conduct by anyone (coworker, supervisor, or nonemployee) that may be harassment, even if it looked welcomed;
  • a procedure outlining multiple ways for employees to report harassment, e.g., a manager, a human resources rep, or a tip line;
  • that all reports will be investigated;
  • that there will be no retaliation for reports of harassment.

Merely having a policy is not enough, though — it must be enforced. Treat all complaints seriously and fully investigate, using an impartial investigator. Also, take intermediate measures during the investigation to protect the employee who complained. At the conclusion of the investigation, take appropriate disciplinary measures if called for. Check in again afterwards to make sure that the measures you took were effective and that any and all harassment has actually stopped.

An effective anti-sexual harassment policy, well enforced, does not just benefit employees; it also gives an employer the chance to defend a sexual harassment suit with the Ellerth/Faragher affirmative defense (for laypersons, this involves avoiding liability by showing the employer exercised reasonable care to eliminate harassment and showing the employee unreasonably failed to take advantage of preventative or corrective opportunities). Even if the Ellerth/Faragher defense turns out to be unavailable, the responsive and corrective measures taken by an employer to end harassment can go a long way to limiting subsequent liability.

Responses

  1. Jena says:

    April 9th, 2014 at 9:44 am

    This isn’t a Sexual Harassment issues just a harassment. My name is Jena and I have been threatened at work and felt like the punishment did not fit the crime for the man who said it. I also feel highly uncomfortable with him still being employed where I work. I feel like at any moment that he will go off and not just for my sake but the sake of every employee that works here. I work at a Private EMS service and that makes it even bigger of a deal. I am also in Human Resources where I work and feel since I am in apart of management that I am suppose to over look the issue and not make a stink. I have actually arrived at work and him be the only other employee here and wont get out of my car until other co-workers arrive. I just am wondering what or how to handle the situation.

  2. Jennifer says:

    November 2nd, 2015 at 11:39 am

    Hello Jena,

    I too am going through the same thing. I filed against a few people for sexual harassment though. One of them quit, the other was demoted and reduced pay, while the third, a supervisor nothing happened to him and he is by far the worst of all of them. In fact he made it so uncomfortable for me that I called into work a few times because I could not handle the stress of working with him and listening to his comments. I filed a complaint. I work for a big federal company. One which tends to sweep things under the rug to stay out of the news. But I feel the only way for them to do the legal right thing is to put it out there in the news. It seems the “big guy” has ties in everywhere. Where I work, the best friend of the Supervisor conducted the investigation, I was asked by the second in command if I told these people to stop, “because some of the women like that kind of attention here” in result, the supervisor was told to not contact me. But remains a supervisor and I’m not the only person who complained against him and I’m not the only person he spoke to like that. I really want to take to the news and sue. Oh and to top it off, I am a Veteran. I hope you get the justice you deserve and find the answers you need. I know I did not answer your question, just know you are not alone.

  3. Sierra says:

    March 25th, 2016 at 7:55 pm

    I work with a female friend who was being sexually harassed by another employee. After numerous incidents she brought it to the attention of our manager, boss, and company owner. They spoke to the employee about his behavior and he agreed to stop, but no other repercussions followed. She eventually felt so uncomfortable in her job that she quit. It upset me that she felt forced out of her job while the perpetrator continues to work here to this day. Are there any legal consequences the management/owner could face for handling the situation so poorly? I know they did not file any charges of sexual harassment or even require him to take a sexual harassment class. I want justice to be served.

  4. Valerie says:

    November 5th, 2016 at 5:36 pm

    Human Resources protects the company against all issues. I was in a similar situation and could be to this day. I was move from an acting manager to a manager. The company Director told that after the investigation was over there was no miss conduct. Just wasted time waiting for the verdict. The 2nd line supervisor was a previous manager who retaliated against me with the acting manager. The newly assigned manager will no do anything unless she involves the 2nd line manager. I decided to go to the voting polls and I usually get the 3 hours but this manager said that it would not take five hours to vote and she has to make sure. So she asks me what am I doing anything fun this weekend who will she be reporting to the 2nd line manager. You can go through the company procedures it will take sometime for them to get back with you. It happens but where is the justice.

  5. Walter snyder says:

    May 20th, 2017 at 2:44 am

    I got my private area grab by another employee I asked for a sexual harrasment form and did not get one I talked with my boss and the employees in my office and everyone actest like it was no big deal and no action was taken at all

  6. Tonya Nevels says:

    August 25th, 2017 at 7:12 am

    A customer grabbed my butt and thigh and when I told my GM all she said was I should have punched him and that was the end of it didn’t ask him to leave she did not take it seriously at all so I changed shifts didn’t see him around for months and now he is back he only comes in if he sees me twice he followed me to the bathroom one day he actually tried to force open the door he scares me he is on some hard drugs and not all there in the head.

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