Claims and lawsuits alleging sexual harassment in the workplace are on the rise. During the 1990s, the number of complaints filed with the Equal Employment Opportunity Commission ("EEOC") alleging sexual harassment has more than doubled. Likewise, since 1992, filings of civil rights lawsuits involving employment practices increased more than one hundred percent.
The courts and Congress have continued to expand the legal remedies available to aggrieved employees. In 1986 the U.S. Supreme Court held that sexual harassment was a form of gender discrimination prohibited by civil rights laws.
The courts are now struggling to decide whether those laws apply to "same sex" harassment. Congress also has worked to put more "teeth" in the law, in 1991 amending Title VII of the 1964 Civil Rights Act to allow jury trials and compensatory and punitive damages in harassment cases.
There are an increasing number of jury awards which emphasize the perils facing an employer who fails to adequately address complaints of sexual harassment in the workplace.
- A female Wal-Mart employee complained that her supervisor and the store manager joked about her, including commenting on her anatomy. She contended that her supervisor once tried to kiss her, and referred to women employees generally in pejorative terms. Although the employee complained, her complaints "fell on deaf ears." A jury awarded her $35,000 for pain and suffering, $1 for lost wages and 50 million dollars in punitive damages.
- A legal secretary alleged that one of the law firm's partners had touched her inappropriately and made sexually explicit remarks to her during her month on the job. When she complained, the firm investigated. However, the firm failed to uncover similar behavior directed against other women over the course of several years. The jury awarded the secretary $50,000 in emotional distress damages, and an additional 6.9 million dollars against the firm in punitive damages.
Employers must be prepared to promptly investigate and respond to complaints of sexual harassment. This paper will briefly discuss:
- What is sexual harassment?
- Considerations in conducting the sexual harassment investigation, including:
- who should investigate?
- why is a harassment policy is important?
- tips on conducting a proper investigation.
What is Sexual Harassment?
According to the EEOC, sexual harassment is defined as:
- Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when
- submission to such conduct is made either implicitly or explicitly a term or condition of employment;
- submission or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual; or
- such conduct has the purpose or effect of unreasonably interfering with the individual's work performance or creating an intimidating, hostile, or offensive working environment.
There are two principal kinds of sexual harassment:
- "Quid pro quo" harassment - This arises when the employee's submission to or rejection of unwelcome sexual advances affects the terms and conditions of the employee's job. (Example - "If you go out with me I will give you a raise," or "If you don't have sex with me you won't get a promotion.")
- Hostile work environment harassment - This occurs when unwelcome verbal, visual or physical conduct of a sexual nature changes the employee's terms and conditions of employment and creates an environment that both the employee and a reasonable person would find intimidating, hostile, abusive or offensive. (Example - A male employee hugs or kisses a female employee when such gestures are unwelcome; an employee makes "cat calls" or tells off color sexual jokes in the presence of other employees of the opposite sex; a person makes sexual gestures toward another person.)
Employees claiming sexual harassment may file suit under Title VII of the 1964 Civil Rights Act alleging discrimination based on gender. In addition, Georgia common law recognizes harassment claims based on allegations of assault and battery (unwanted touching), intentional infliction of emotional distress (outrageous verbal abuse of a sexual nature), defamation (making false statements) , and negligent hiring (failing to adequately determine a supervisor's qualifications).
Conducting the Investigation
Once an allegation of sexual harassment surfaces, the employer should take immediate steps to conduct a prompt, fair and objective investigation into the facts.
Why is an Investigation Important?
Apart from simply being "the right thing to do," a proper investigation of a sexual harassment claim may insulate the employer from liability. Although the EEOC has stated that an employer is strictly liable for a supervisor's acts of quid pro quo sexual harassment, an employer is not liable for hostile work environment sexual harassment if the plaintiff fails to demonstrate that the employer both knew or should have known that the harassment was occurring and failed to take prompt and appropriately effective measures upon discovery of the harassment.
In numerous reported cases, courts have granted judgment to employers in hostile work environment cases based the employer's swift response to the plaintiff's complaint. On the other hand, many of the nightmarish verdicts in these cases have arisen because an employer ignored complaints of harassment or conducted a dilatory or incomplete investigation of the charges.
The Importance of an Anti-Harassment Policy
Of course, victims of sexual harassment may never lodge a report of sexual harassment if they are unaware that their employer prohibits it, or if they are uncertain how to process their complaint. For this reason, it is important that an employer establish a clear written policy defining sexual harassment and express "zero tolerance" for such conduct.
The policy should be communicated in writing and reinforced verbally in meetings with employees. It should be made clear that those who violate the policy will be disciplined. The policy should state that employees are expected to report any incidents of sexual harassment.
The policy should also implement an effective procedure for reporting problems. Employees should be assured that their complaints will be kept as confidential as possible and that no retaliation will be made against them for raising legitimate complaints.
Tips on Conducting a Proper Investigation
When a complaint is made, the employer must decide who should take the lead in conducting the investigation. This may depend on a variety of factors, including size of the company and the number of job locations. Appropriate investigators may include someone in the Human Relations department, an in-house attorney or other designated management employee.
Regardless of who does the investigation, the employer must find someone who is competent, knowledgeable of company policies and procedures, and capable of bringing fairness and objectivity to the process.
Generally, the first step in the investigation is to interview the complainant. Again, the investigator must bring an open mind to this interview. It is often advisable for the employer to have a witness in the interview, preferably of the same sex as the complainant, in the event a dispute arises later over what was said.
The interviewer must get all of the specific details - the "what, where, who and how" questions - in the interview. The complainant should be assured the employer takes the allegations seriously and will take steps to reinforce its anti-harassment policy.
Further, the employer ought to assure the employee that the complaint will be kept as confidential as possible, however, complete confidentiality should never be promised. It is often advisable to ask victims how they would like to see the matter resolved.
The next logical stage of the investigation involves interviewing the alleged harasser. Again, care should be taken to conduct this interview with an unbiased attitude. (The employer should be aware that in some cases, employees wrongly accused of harassment have later sued their employers alleging defamation or wrongful termination.)
As in the interview with the purported victim, it is advisable to have a witness of the same sex present during the interview. The employer should outline the charges which have been made against the accused and solicit a response. Again, the employer must emphasize that sexual harassment of its employees is not tolerated.
In the event that the employer determines that harassment has likely occurred, EEOC guidelines require quick immediate and appropriate corrective action if the facts warrant it. This may consist of immediately seeing to it that the harassment stops and in taking appropriate disciplinary action against the harasser. Depending on the severity of the harassment, appropriate disciplinary action may include verbal counseling, warnings, suspensions or termination.
Workers today are taking advantage of stronger laws and more expansive court interpretations to assert their right to be free from sexual harassment in the workplace. Because juries may be very sympathetic to these claims, employers ought to be aware how to address them.
The first step is to compose and communicate a clear policy prohibiting such conduct. In the event allegations of sexual harassment surface, the employer needs to be prepared to investigate such allegations as quickly and fairly as possible, and to take action if warranted. Although an investigation may not provide a defense in all cases, it may exonerate the employer from liability in certain instances.