It’s one of the toughest HR problems: Handling a sexual harassment claim when the alleged harasser is a supervisor. That’s because employers are strictly liable for harassment by
But all is not lost. With proper planning, you can minimize the liability risk. Here’s how:
1. First, you need a solid sexual harassment policy—one that employees know about and understand that they should use whenever they believe they may be experiencing harassment. Explain that they should contact HR (or whoever handles harassment cases) sooner rather than later, so you can stop the conduct before it gets out of hand.
2. Second, you need to make sure you quickly and thoroughly investigate and resolve all complaints. That means taking appropriate disciplinary or corrective action against the harasser if the conduct violates your policy.
3. Finally, you need to make sure that any adverse employment decisions—discharges, demotions or substantial changes in working conditions, such as transfers or shift alterations—are approved by someone other than the immediate supervisor and are based on solid business reasons.
As the following case shows, taking all those steps will save you from liability for supervisor harassment.
Recent case: Misty Roby, who worked for Camping World, complained to HR that her supervisor was harassing her. She said he frequently made offensive comments to her and once slapped her on the buttocks.
HR immediately investigated, interviewing Roby, her supervisor and other employees. The conclusion: The supervisor’s conduct was inappropriate under the company’s sexual harassment policy, but didn’t quite amount to sexual harassment.
Then HR made sure Roby didn’t have to work near the supervisor, reprimanded him and required him to undergo sexual-harassment training.
Several months later, Roby complained that the supervisor was “glaring” at her. However, he never made any sexually oriented comments. Roby went home after her last complaint and never returned, even though she remained listed as an employee for almost two years.
She sued, alleging sexual harassment and retaliation.
The 7th Circuit Court of Appeals dismissed her case. It said she had not suffered an adverse employment action, but had simply gone home even after the company did everything reasonable under the circumstances to protect her from harassment.
Because she wasn’t demoted or fired or otherwise punished in any way by the harassing supervisor (the court described the supposed glares as “high school stuff”), the company wasn’t liable, since it had acted fast to stop the harassment. (Roby v. Camping World, No. 08-3513, 7th Cir., 2009)
Final notes: Make sure you document every response to a sexual harassment complaint. Include a list of everyone contacted and document as much detail as possible what they said.
When the investigation is over, tell the alleged victim what she should do if she has any other problems. Then check back with her periodically to make sure all is well.
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