The possibility of facing a sexual harassment claim can make any employer nervous. And investigating a workplace harassment charge is frequently uncomfortable for all parties involved. To make matters worse, the line between illegal harassment and offensive but harmless office banter can be fuzzy at best.
Two recent cases provide a sharp contrast between an employer who took all the right steps to protect itself and one who did almost everything wrong. The cases make clear that even when harassment occurs, proper policies and procedures go a long way toward protecting you from these potentially explosive claims. To help evaluate what you’re doing right-and where you might be vulnerable-we’ve put together a 16-point checklist for auditing your own sexual harassment policies.
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Waitress Charges Harassment
The first case involved a Hilton Hotel banquet waitress named Kaffie Jackson. She claimed that on one occasion her supervisor pulled open her blouse and tried to lure her into his office. Afterward, the waitress complained to her supervisor’s boss anda union representative.
The complaint was directed to the human resources department, which promptly investigated. After interviewing the parties involved, the hotel suspended the supervisor for three days without pay, counseled him on their sexual harassment policies and warned himthat another similar incident would result in termination. Nonetheless, Jackson sued the hotel, claiming the sexual harassment created a hostile work environment.
Employer Acted Properly
The court found the hotel acted properly by promptly investigating the complaint and disciplining the supervisor. Also, the court observed that this was an isolated case and there were no otherincidents of harassment directed toward the waitress or anyone else. Therefore, the court ruled in favor of the hotel and threwout the lawsuit.
Pervasive Harassment Ignored
In the other case, however, the employer did not fare so well. Diane Harris and Maria Prasky were warehouse workers for L & L Wings Inc., a beachwear retailer. The women claimed their supervisor and other employees touched and fondled them almost daily, andthat they were constantly urged to sleep with the supervisor in exchange for money or promotions. The women also charged that the work environment was permeated with sexually explicit graffiti and posters, and that profanity and dirty jokes were common place.
The women complained about the harassment more than once to several different managers, but nothing was done. Harris and Prasky werelater fired and they joined in a sexual harassment lawsuit. Ajury awarded them $139,000 in lost earnings and attorney’s fees, plus $150,000 in punitive damages.
Wings appealed, claiming its senior management wasn’t notified about the harassment and therefore couldn’t be held responsible for it. But the court upheld the jury’s award. It pointed outthat because Wings had no written grievance procedure or sexual harassment prevention policy, the women had no way to know exactlywho handled complaints. And, the court ruled, the women’s complaints to warehouse managers, coupled with the pervasive graffiti and pornography throughout the workplace, were sufficient to put the company on notice of possible harassment.
Lack of Policy Is Costly
The court also held that punitive damages were justified because of the egregious nature of the harassment, the company’s lackof a sexual harassment policy, and the fact that Wings did nothingin response to the employee complaints.
16-Point Sexual Harassment Audit
In both cases, the existence-or absence-of a sexual harassmentprevention policy made a big difference in the outcome. There are also other measures you can take to minimize your legal exposure.
Here’s a 16-point checklist for assessing your risk. (Note that to avoid the possibility of having to disclose your responses to this checklist in the event of a lawsuit, use this list fora quick mental review rather than as a form you fill out and keep in a file.) The more questions you answer yes, the stronger your position.
- Do you have a written sexual harassment prevention policy?
- Does your policy define sexual harassment and provide specific examples of prohibited conduct, including retaliation for reporting harassment?
- Does your policy describe how complaints of sexual harassmentare to be reported?
- Does your policy describe the range of discipline that maybe imposed for prohibited conduct, up to and including termination?
- Does your policy inform supervisors that they may be held personally liable for harassment?
- Do you have a system for periodically reviewing your policy to make sure it’s up-to-date and complies with current law?
- Is the policy well-publicized, conspicuously posted, and distributed to employees and supervisors in employee handbooks and during orientation and training sessions?
- Do you train supervisors in how to comply with your harassment policy and how to recognize harassment?
- Do you have a training program for all employees to help heighten sensitivity and awareness of sexual harassment issues?
- Do you have procedures for investigating employee complaints,including complaints of sexual harassment?
- Do you have at least one high-level person who is specially trained and responsible for responding to harassment claims?
- Do you have a convenient and reliable procedure for employees to report sexual harassment incidents?
- Do you give an individual accused of harassment a full opportunity to explain before you make a decision?
- Are you consistent in how you impose discipline once you determine harassment has occurred?
- When deciding on a remedy, do you make sure never to do anything that could be considered as retaliation against the victim, such as changing her work duties or reassigning her to a less desirable position?
- Do you maintain a separate, confidential investigation file documenting the investigative steps you followed, the basis for your conclusions and what type of discipline was imposed?