Your organization probably has policies prohibiting sexual harassment, and you probably offer training for supervisors and employees alike on how the policy works. But that simply isn’t enough.
What really matters is whether your system initiating complaints gives employees an easy and effective way to come forward.
Employees aren’t all alike; some may be more sophisticated than others. For them, contacting HR to discuss possible sexual harassment may not be particularly intimidating or anxiety-provoking.
On the other hand, a clerk or housekeeper who speaks little English might find the direct approach very frightening. She may need an easier approach, such as a hot line that connects her with someone who speaks her primary language.
In short, you should have multiple ways for employees to report sexual harassment. The more ways you provide, the more likely a court will conclude that an employee who failed to report the harassment was acting unreasonably.
If you have a comprehensive complaint process and an employee doesn’t use it, then you probably won’t be held liable in most cases.
Recent case: Karen Duch, who worked as a court officer for the New York State Office of Court Administration, engaged in consensual sexual activity with a new male co-worker. The next day, she told him the encounter had been a mistake and that she had no interest in a relationship. According to Duch, the co-worker continued to pursue her and made more advances.
The Office of Court Administration has a sexual harassment policy and provides at least five ways to initiate a sexual harassment complaint. Those include notifying a supervisor and any of several other named employees. Duch casually mentioned the problem to a co-worker who was one of the designated employees. That went nowhere because the woman hadn’t yet been trained in how to handle harassment complaints.
Duch then sued for sexual harassment. The court dismissed the case, concluding that Duch hadn’t acted reasonably when she didn’t go to another individual on the list. Because Duch didn’t report the co-worker harassment by using an alternative contact, she didn’t give her employer an opportunity to fix the problem and stop any further harassment. (Duch v. Jakubek, No. 07-3503, 2nd Cir., 2009)
Final note: Remember that the rules are stricter if the harasser is a supervisor. Employers can be liable for supervisor harassment if the harassed employee is punished in any substantial way, such as being demoted or terminated—even if the employee doesn’t report the problem.
With supervisor harassment, prevention is most definitely better than a (too late) cure.
Advice: Make adherence to sexual harassment guidelines part of managers’ evaluations, and show that you’re serious about preventing supervisor harassment. You may have to act decisively the first time such harassment happens in order to set the right example and send a signal that such behavior won’t be tolerated. Also consider a rule against any personal relationships between subordinates and supervisors. That way, a romance gone bad won’t deteriorate into a sexual harassment lawsuit.
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