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He said, she said: What if they both did? Trust investigation to reveal harassment truth

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in Discrimination and Harassment,Human Resources

In the interest of maintaining a workplace free of sexual harassment, you probably have a robust sexual harassment policy that goes beyond what the law requires. Prohibiting all sex talk makes it clear that, first and foremost, the workplace is for work. Such a policy is entirely reasonable.

The problem is enforcement. If your policy is comprehensive, any complaint may trigger an investigation that uncovers many violations—perhaps even by the complaining employee.

When that happens, the best policy is to let the investigation take its course and document everything. Then discipline everyone who violated the policy.

Recent case: Amanda Robinson worked at Caterpillar as a materials specialist, moving parts from large shelving units and transporting them to the shipping dock. She had no reprimands on her record and always met her production goals.

Then Josh Perry began working at the facility, operating a forklift.

Caterpillar has a strong sexual harassment policy in place. It defines harassment as any unwelcome conduct based on sex. It prohibited conduct, comments, gestures, pictures and teasing that belittles another or shows hostility to members of a particular sex. The policy explicitly forbids joking, soliciting sexual favors, displaying obscene materials and  patting, touching or brushing up against another person, among other acts.

Robinson claimed that Perry approached her and told her that his wife was interested in a threesome with her. He continued to press for a liaison, and boasted to Robinson about his own sexual prowess. The behavior escalated and Robinson claimed that Perry exposed his genitals to her three times while operating a forklift. The last time, he allegedly told Robinson to touch his exposed penis.

Robinson told a co-worker, who reported the problem to a supervisor, who in turn called in HR.

HR launched an investigation. During interviews, co-workers told the investigator that Robinson also discussed her sex life at work. Perry claimed that it was Robinson who asked him to show her the goods.

Based on interviews with Perry, Robinson and a long list of co-workers, HR concluded that both had violated the sexual harassment policy. Caterpillar fired both of them.

Robinson sued, alleging that she had been targeted for retaliation as soon as she complained about Perry. In her view, she was fired for reporting sexual harassment.

The court disagreed. It said Cater­pillar conducted a thorough and impartial investigation, determining that both employees violated its strict sexual harassment policy. The court said that’s not retaliation—that’s enforcing company policies aimed at preventing sexual harassment in the first place. (Robinson v. Caterpillar, No. 1:10-CV-0876, MD PA, 2012)

Final note: Caterpillar did everything right. It created a sexual harassment policy that is extremely specific about its expectations for a harassment-free workplace. It let all employees know its expectations. Then it acted promptly when someone complained, investigating thoroughly.

If your sexual harassment policy could use review and expansion, contact your attorney for assistance. He or she can best help you create a practical, comprehensive and enforceable policy.

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