The more employees travel for business, the more exposure employers have — often with costly consequences. Businesses must be prepared for problems that might arise when male and female employees travel together, whether domestically or internationally. Contrary to popular belief, what happens in Vegas doesn’t really stay in Vegas — it gets told in court.
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Inappropriate conduct away from the office can lead to courthouse
Generally, a court will analyze the characteristics of a specific work site when considering whether an employee was subjected to a hostile work environment. Yet all too frequently, employees leave their inhibitions at the office and act inappropriately during business trips. In response, courts have found harassing behavior unlawful even when it occurred on a single business trip.
What makes misbehavior on business trips egregious enough to create a hostile work environment? In one extreme case, McInnis v. Fairfield Communities, Inc., a female employee claimed she was raped by her supervisor while they were on a business trip to Las Vegas. The court believed her, and she was awarded a substantial verdict in a discrimination and retaliation lawsuit against her employer.
In Penry v. Federal Home Loan Bank of Topeka, a federal district court found it relevant that a female employee’s supervisor took her to Hooters, a bar where waitresses dress provocatively. Even rumors about what happened on a business trip can lead to a lawsuit. In one case, an employee successfully sued her employer for defamation after her supervisor believed a rumor and accused her of sleeping around during a business trip.
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Company’s response can prevent liability
An employer’s immediate and effective response to complaints about harassment during a business trip may protect it from legal liability for the perpetrator’s conduct. One employer escaped liability for sexual harassment because of its quick action when a female employee complained about four offensive incidents during a business trip with a colleague.
In response to her complaint, the employer disciplined the harasser and separated the two employees. The federal court of appeals found the company’s response was immediate and appropriate and absolved it of liability for sexual harassment.
In another case, Dornhecker v. Malibu Prix Corp., a female employee told her employer that her supervisor had harassed her during a business trip. The company immediately took corrective measures and informed her that she wouldn’t have to work with the supervisor again. Nevertheless, she resigned the same evening. The court found that because she hadn’t given her employer a fair opportunity to correct the supervisor’s inappropriate behavior, the company wasn’t liable in the resulting lawsuit.
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When employer’s response just isn’t enough
A prime example of an employer’s poor response to a sexual harassment complaint occurred in James v. Lyons Savings & Loan Association, a case in Illinois federal court. During a business trip, a supervisor made sexual advances toward his female subordinate and tried to force his way into her hotel room.
The employee asked her employer to investigate the incident, requesting that the supervisor be prohibited from contacting her during the investigation. Despite that request, her supervisor called her to reiterate his desire for a relationship and ask that she withdraw her complaint. She told the employer’s attorney about his calls, but nothing was done.
Having finished its investigation, the employer decided that the employee’s complaint was without grounds and required her to return to work under the same supervisor. Five days after she went back to work, she was fired. The employer’s actions appeared to condone the supervisor’s harassing behavior — or so the federal court thought and it decided that a jury should hear the employee’s claim.
The James case underscores the importance of being prepared for possible retaliation claims after receiving — and dismissing — sexual harassment complaints.
In a similar case, Dahms v. Cognex Corp., a Massachusetts court refused to dismiss a lawsuit in which a female employee alleged that a company executive grabbed her and tried to force his way into her hotel room during a business trip. Shortly after she complained about her supervisor’s sexual harassment, the company fired her and took away her stock options. Based on the employer’s reaction to her sexual harassment complaints, the court allowed a jury to consider her subsequent retaliation claims.
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Avoid the pitfalls
Those cases illustrate exactly what not to do when an employer receives a complaint about sexual harassment during business travel. Once a harassment complaint is made, act with immediacy, care, and foresight, and promptly investigate all allegations of employee misconduct on business trips. Following a few simple steps may help prevent an embarrassing lawsuit:
- Do not allow contact between the alleged harasser and the victim, especially during the investigation.
- Be responsive to complaints of continued harassment during your investigation into the initial complaint. In the James case, the employer’s lack of response was used as evidence that it didn’t take the employee’s complaint seriously.
- Think hard before returning the employee to work under the supervisor she complained about if you determine her complaint was groundless. A company’s action may be used to demonstrate a lack of sensitivity in a subsequent retaliation suit.
- Be sure to follow precise procedures and document the steps the company took if it terminates an employee after dismissing her harassment complaint. Temporal proximity between a harassment complaint and termination, regardless of how the complaint is resolved, never looks good in court. In the James case, the employer virtually guaranteed a retaliation claim by firing the employee five days after it dismissed her complaint. That timeline also gave the employee’s claim more credibility during the jury trial. Make sure your reasons for terminating someone aren’t linked solely to her complaint.
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