Issue: Employers can be liable for sexual harassment if they "knew or should have known" about it but failed to act.
Risk: Courts increasingly say you "know" of harassment once any manager hears of it or observes it.
Action: Remind supervisors to direct harassment complaints (or any harassment they observe) to the proper "complaint-takers."
When does your organization officially "know" of a harassment complaint? It's not always when the complaint is lodged with the designated person cited in your reporting procedure. If your lower-level managers get wind of off-hand gripes about harassing or discriminating conduct, consider yourself on notice.
That's why it's important to train all your supervisors to keep their eyes and ears open to harassment complaints, as well as to incidents of harassment itself. Teach them to pass on such complaints to the official complaint-taker in your organization (probably you).
Remind supervisors that complaining employees may not always use the word "harassment" when lodging a complaint. Supervisors must be able to identify when an informal grumble rises to the level of a harassment complaint. Rule of thumb: When in doubt, pass the complaint up the chain.
Case in point: A female prison guard told her two supervisors that her co-workers used obscene language, sexually propositioned her and viewed porn at work. The supervisors didn't respond. She never filed a complaint through the official channels, even though she knew the procedure.
She quit, sued for sexual harassment, and a court let her case proceed. Even though she never formally complained, the court said that her discussion with the two supervisors was "sufficient to notify" the employer. (Dunbar v. County of Saratoga)
Â Solve 'He said/She said' cases
When facing conflicting stories of alleged harassment, you can't just throw up your hands. For help in making a decision, access our free report, Investigating Harassment: How to Determine Credibility, at www.theHRspecialist.com/harassment.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- No more hide-and-seek: new duty to retain electronic data
- Keep detailed records on disciplinary process
- When technological change means jobs are changing too, document the training you offer
- USERRA: Another worry when using independent contractors