Occasionally in the course of your HR work, you probably discover things you really would rather not have learned. For example, sexual harassment.
Sometimes despite your efforts to prevent it, a complaint leads to solid evidence that a female employee has endured severe sexual harassment at the hands of co-workers. What’s your next move? And will that move enable you to prevent a successful lawsuit?
Do the right thing and you’ll be fine. If you correct the problem and prevent any further similar harassment, your company will be in the clear after 300 days.
Recent case: As soon as Donna McGullam went to work for Cedar Graphics, she began using a journal to catalog her male co-workers’ boorish behavior and sexually explicit talk.
She also started to complain to managers, explaining the sort of harassment she was experiencing. For example, on her first day on the job, she was asked to retrieve a file by climbing a ladder; the male co-worker holding the ladder joked that she shouldn’t worry about him looking up her skirt. Then, when she brought another co-worker a package, he commented, “I didn’t think you could even drag your big fat ass back here.”
On yet another occasion, a co-worker told her, using explicit language, that the reason she was having romantic problems was that she wasn’t having enough sex.
That kind of behavior continued regularly until she finally requested a transfer to another job in part of the building far away from the men who were making the comments. Cedar Graphics granted her request.
Then, after a little more than 300 days had passed since her transfer, McGullam was terminated. She sued, alleging she had been subjected to a sexually hostile work environment.
But the court dismissed her case, reasoning that employees have just 300 days after the last harassing incident to file an EEOC or state discrimination agency charge. The only new comment she had heard after her transfer was someone referring to women as “chickies.”
The court explained that a single sexually harassing comment after the 300-day period could revive the prior sexual harassment case and allow an employee to bring those earlier comments and actions into the case. But, it noted, that wasn’t the case here. Instead, the court said the “chickies” comment was innocuous and didn’t open the door for a renewed lawsuit. (McGullam v. Cedar Graphics, No. 08-4661, 2nd Cir., 2010)
Final notes: Of course, McGullam could have filed a sexual harassment lawsuit anytime in the 300 days following her transfer and been in compliance within the time requirement. Then her former employer would have had to show that it had a policy in place designed to prevent sexual harassment and that the measures it took to stop the harassment—in this case, the transfer—were actually effective. Then, once the 300 days had elapsed, it wouldn’t have to worry about a lawsuit unless the harassment is renewed.
Your best bet is to stay on top of the situation by checking back with the employee regularly and making sure everything is OK.
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