Recent court rulings have emphasized the importance of having an easy and reliable procedure for reporting sexual harassment incidents. In fact, in many cases, the terms of your sexual harassment policy can make the difference between avoiding liability-or paying huge damages. But in an evolving aspect of the law, a surprising new federal appeals court decision suggests that many employers’ policies may still be inadequate, even if they contain what seem to be straightforward reporting procedures. The reason is that employers often fail to provide a way for night-shift employees to report sexual harassment that happens after hours. We’ll take a look at the new decision and the steps you may need to take to strengthen your existing policies.
Supervisor Harasses Night Worker
Frances Wilson worked as a night shift janitor at Tulsa Junior College. One night when she was working alone, her immediate supervisor, Kenneth Hall, allegedly exposed himself to her, requested oral sex and told her that if she refused him, “he could make [her] life hell.”
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Police Notified
When her shift ended at 1 a.m., Wilson drove home and reported the incident to the local police. The next morning, an officer contacted the campus police supervisor and told him an unidentified “hysterical female” had called the night before to report a harassment incident.
The supervisor took no action until the end of the day, when he passed the complaint on to an assistant. The assistant questioned Hall but made no effort to identify or contact the harassed employee, either to hear her side of the story or to warn her that Hall knew of her call to the police.
Later that night, the city police arrested Hall. The college immediately suspended him. About three weeks later he returned to work and was transferred to a day shift at a different location. He eventually resigned while the criminal proceedings were still pending.
Employer Says Procedures Adequate
Wilson sued both Hall and the college for sexual harassment, and a jury ordered the college to pay her $100,000 in damages. The college appealed the jury’s verdict. It argued that even though Hall had sexually harassed Wilson, it should not be held liable for his misconduct because the college’s harassment policies and procedures were adequate and it had responded promptly and appropriately to Wilson’s charges.
No Late-Night Complaint Procedure
The college said that its sexual harassment policy provided for several different ways an employee could report problems, including notifying the director of personnel. But a federal appeals court ruled that the college’s policy was deficient because it didn’t provide a system for employees to report sexual harassment complaints after normal hours. The director of personnel’s office was located in a separate facility and was not accessible during the evening or on weekends, when some employees were at work.
Plus, the court said the policy didn’t go far enough in requiring supervisors or the campus police to report sexual harassment complaints to high-level college officials. Instead, it only instructed supervisors to pass on “formal complaints,” without defining a “formal complaint” or how “informal” sexual harassment complaints should be handled. The appeals court therefore upheld the award.
Action To Take Now
Although California courts of appeal have not yet ruled on this subject, the decision raises serious questions about how far harassment policies need to go to ensure that night-shift or off-site workers have access to HR personnel or other company officials. Here are three immediate steps to take to close this possible loophole in your policy:
- Provide for off-hours reporting. If you have employees who work at night or at locations away from your central administrative office, make sure your sexual harassment policy and procedures provide an easy and reliable way for them to make a complaint. Options include setting up a 24-hour hotline number, designating certain specially trained night or off-site managers to receive complaints, or having someone from the HR department available at night and on weekends and holidays.
- Act quickly. The college got in trouble partly because the campus police supervisor didn’t immediately report the complaint to the appropriate officials. Emphasize to managers the importance of dealing with harassment complaints promptly. In this case, waiting until the end of the day before acting on the complaint helped land the college in hot water.
- Communicate with and shield the victim. Review your procedures for investigating sexual harassment complaints. While the investigation is pending, keep the alleged victim apprised of your progress and take steps to shield the employee from further harassment or retaliation for having made a complaint.