If you receive a sexual harassment complaint, you must promptly investigate and impose corrective action to stop the harassment. But it’s less clear what you should do if you can’t substantiate the complaint. A new Ninth Circuit Court of Appeals decision focuses on how far you need to go in this situation.
Employee Harassed By Co-Worker
Melody Swenson, a mail sorter in the U.S. Postal Service’s San Francisco processing center, alleged that co-worker Philip Feiner made repeated sexual remarks to her for over a year. Swenson never told him to stop or reported the harassment to management.
One day Feiner allegedly approached Swenson, said he wanted to kiss her and grabbed her gloved hand. Swenson jerked her hand away and screamed, “Stop it!” She complained to a co-worker, who reported the incident to Swenson’s supervisor, Ruben Domingo. The supervisor told Feiner to stay away from Swenson.
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Investigation Begins
Three days later, Swenson reported the grabbing incident to human resources, and HR employee Barbara Faciane immediately investigated. Faciane cautioned Feiner to stay away from Swenson, interviewed witnesses and obtained written statements. Faciane also temporarily moved Swenson to a new location in the processing center to minimize contact with Feiner.
In his interview, Feiner denied making sexual comments. As for the grabbing incident, he claimed he tried to shake Swenson’s hand and, because her glove was dirty, held her wrist lightly to remove it. The investigation ultimately didn’t find enough evidence to support disciplining Feiner.
To resolve the situation, the Postal Service assigned Swenson to a location away from Feiner’s work area, as she requested, and designed a special schedule for her so she would have less contact with Feiner.
Victim Quits And Sues
About 14 months later, Swenson quit and sued, claiming the Postal Service didn’t take appropriate corrective action. The Postal Service pointed out that it investigated promptly and took effective measures to ensure there were no further problems. A jury sided with Swenson and awarded her $125,000.
Employer Took Appropriate Action
Now the Ninth Circuit Court of Appeals has thrown out the jury verdict. The court explained that when faced with a sexual harassment complaint, an employer has a two-part duty to 1) take immediate corrective steps to deal with the situation while determining whether the complaint is justified, and 2) take permanent remedial steps once the investigation is complete.
The court found the Postal Service’s interim and permanent responses to Swenson’s complaint appropriate. Here are the reasons why:
- Employees temporarily separated. Supervisors twice warned Feiner to stay away from Swenson and separated the two employees while the investigation occurred. The Postal Service wasn’t required to provide Swenson with a Feiner-free workplace merely because she complained. The degree of separation that must be imposed depends on the severity of the alleged harassment and the evidence the employer has to support the complaint.
- Investigation was promptly launched. The court said that it is critical to implement an immediate, fair and objective investigation. The Postal Service promptly investigated by interviewing relevant witnesses, taking written statements and discussing the complaint with Feiner.
- Permanent measures separated workers. Although the Postal Service couldn’t substantiate the charges, it took permanent steps to separate Feiner and Swenson and changed Swenson’s schedule to further minimize contact. Management also discussed with Swenson job possibilities at other locations that Swenson turned down. According to the court, an employer has wide discretion in choosing how to minimize contact between the two employees as long as the victim/accuser isn’t moved to a less desirable position.
- Harassment ended. The court lauded the fact that the Postal Service’s remedial measures ended the harassment. The court explained that when proof of harassment is weak and disputed, the employer isn’t required to take formal disciplinary action simply to prove that it’s serious about stopping workplace harassment. What ultimately matters is whether the employer implemented remedial action that stopped the harassment.