In an environment when even the President of the United States is subject to embarrassing, time-consuming and costly lawsuits for alleged sexual indiscretions with an employee, employers must be concerned about the manner in which their personnel, especially those with managerial and supervisory positions, deal with their subordinates. However, recent court decisions have provided some limited protection for employers where employees have violated sexual harassment laws by creating a hostile work environment. A person now seeking to recover under a hostile work environment claim must demonstrate that the employer had some specific knowledge and that the employer failed to take appropriate corrective action in order to hold the employer liable. Prompt and thorough investigations, followed by appropriate corrective action, will better position an employer to defend these claims.
Only Certain Supervisory Personnel Can Bind the Company
A summary of these cases sets forth the changing environment. These cases focus on the level of the supervisor within the organization and the appropriateness of the investigation when dealing with claims of sexual harassment. In Torres v. Pisano, 116 F.3d 625 (2nd Cir. 1997), the plaintiff, a female administrative secretary at the defendant New York University's Dental Center, complained that she was the subject of repeated racial and sexual slurs by her supervisor, Eugene Coe, the Dental Center's Manager, creating a hostile work environment. Intimidated by Coe, she was afraid to complain to Coe's superior concerning the conduct. Finally in February, 1994, she put her complaints in writing and forwarded them to Leonard Pisano, the Assistant Director of Maintenance of Academic Facilities, but requested he keep the allegations confidential. Pisano, relying on this request, did nothing until June of 1994 when he had her meet with Stephen Heller, the University's Assistant Vice President. After hearing the story, he referred her to counseling and transferred her to a new position in a different department and she was subsequently promoted.
You Should Have a Means of Processing Complaints
This case is important in its discussion of an employer's liability for the conduct of its "low level supervisors." Specifically, the Court found that Coe, in his capacity as the University Dental Center manager, did not occupy a position in the upper echelon of the company's management and concluded that there was no evidence that Coe used his position to further the harassment.
Second, where the employer provides a reasonable avenue for processing these complaints and takes reasonable steps to stop the harassment, the employer may be protected from liability for the conduct of its employee.
Be Careful to Avoid a Lawsuit by the Harasser
Appropriate investigation procedures can also eliminate claims against the company brought by the accused harasser. In recent years, accused harassers have won large sums for terminations based upon sloppy investigations of claims of sexual harassment. A recent case in the District Court of Connecticut upheld the jury's award for damages granted because of the manner in which the employer handled a claim of sexual harassment. In Malik v. Carrier Corporation, the plaintiff claimed that the actions of the defendant's human resources department were excessive and unnecessary, causing the plaintiff severe emotional distress. The lawsuit arose out of the termination of plaintiff's employment by Carrier. The plaintiff sued Carrier, claiming he was wrongfully terminated. The plaintiff argued that these allegations were unfounded and were generated by the defendant's overzealous investigation of the sexual harassment claim. The jury agreed and its message was clear - investigations of sexual harassment based upon insufficient evidence cannot be used to terminate an employee.
Steps to Take
The law continues to develop in the area of who is and who is not considered low-level management. To avoid the cost of expensive litigation, employers can take certain aggressive steps in dealing with this area. Proper training, investigation and action concerning a harassment claim can shield an employer from liability in lawsuits by the harassed and the harasser. Some steps to take are as follows:
- The employer must set up a specific procedure by which complaints of sexual harassment are promptly and thoroughly investigated.
- The employer must publish a policy and maintain an open-door procedure for those who have complaints.
- When a complaint is made, the employer should consult with counsel on how to best handle the complaint and then advise the employee that the allegations will be investigated immediately in order to make a determination as to whether corrective action is required.
- If action is warranted, the employer should take immediate and appropriate corrective action by ending the harassment and preventing the misconduct from reoccurring.
- If there is no evidence of harassment, the employer should, after its investigation, appropriately document its findings.
- Disciplinary action against the offending employee may be necessary, ranging from reprimand to discharge, depending upon the severity of the conduct.
By implementing these procedures, the employer can effectively eliminate inappropriate conduct while making sure it is protected from claims of wrongdoing by the harassed and harasser.