When it comes to sexual harassment, employers need a clear policy and a process that allows employees to come forward with claims. That's really the only way an organization can protect itself.
But what if an employee who thinks he’s being harassed ignores your policy and acts alone to contact the alleged harasser anonymously? If this “self-help” seems to threaten the alleged harasser, you can punish the employee without worrying about liability.
Recent case: Todd Bernier worked for Morningstar as an equity analyst. The company has a well-defined sexual harassment policy: Informing the company is essential and required. It spells out in detail whom to call and encourages employees to do so.
Bernier worked with a fellow employee he knew was gay. When the two were standing at the urinals in the restroom, Bernier thought he saw the co-worker eyeing his penis. He took the glance as sexual harassment. Instead of pursuing the matter through his supervisor or the HR office, he sent an anonymous text message to the co-worker. The instant message (IM) flashed across the co-worker’s computer screen: “Stop staring! The guys on the floor don’t like it.”
The co-worker became alarmed and thought he now was being harassed. Since the co-worker had a condition known as “lazy eye,” which sometimes makes it look as though he is glancing off to the left when he actually is looking straight ahead, he had no idea that he might have appeared to stare at Bernier in the restroom. But he followed directions and reported the IM to.
The company traced the IM to Bernier. Although he denied sending the message, he was fired for sexual harassment. Bernier sued, claiming he was the one who had been harassed.
The 7th Circuit dismissed the case. It reasoned that if Bernier had followed policy, the matter easily could have been resolved. Since he didn’t, the company could have assumed it was Bernier who had harassed, rather than the other way around. (Bernier v. Morningstar, No. 06-1617, 7th Cir., 2007)
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