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Beware ADA claims if alleged victim isn’t satisfied with harassment investigation

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in Discrimination and Harassment,Human Resources

Some sexual harassment complaints don’t pan out. If, after investigating, you conclude that no harassment took place, the employee who complained may not be satisfied. How should you handle her?

Your best bet is to address her concerns about having to work around the alleged harasser. Separate the two. If you have to move the complaining employee, make sure she is not penalized in terms of pay or benefits.

Recent case: Tamara is a long-term Xerox employee who worked independently and preferred it that way. She was so adverse to co-worker interaction that she actually created a cardboard barrier on her workstation so she would not have to see others.

Tamara complained to her super­visor that a male co-worker had entered her work area wearing torn jeans. She claimed a hole in the crotch area exposed his genitals because he wasn’t wearing underwear. In her com­­plaint, she also said the co-worker had recently shown her pornography on his work computer.

In addition, she claimed that personal belongings were disappearing from her workstation and that the co-worker had stolen her cellphone.

Xerox set up security cameras, which failed to capture any tampering. Tamara’s phone later turned up in her car.

The company immediately separated the two and launched an investigation. Co-workers and Tamara were interviewed, as was the alleged har­­asser. Tamara added that she had also seen the co-worker masturbating at work.

The alleged harasser denied not wearing underwear, masturbating or viewing porn. No one else had ever seen anything suspicious and his computer showed no evidence it had accessed pornography. Based on its investigation, Xerox concluded it couldn’t substantiate harassment.

That wasn’t good enough for Tamara, who claimed she was having flashbacks to the harassment and couldn’t go back to her old work­station. Xerox asked her to provide a doctor’s note, which she did. The company then moved her again, calling the transfer a reasonable accommodation.

Tamara sued anyway, alleging she had endured a sexually hostile work environment.

Xerox argued it had done everything required of it, and then some. It immediately separated the two when Tamara first reported the har­­ass­­ment. It began an investigation, spoke with everyone involved, checked the co-worker’s computer for pornography and generally tried everything it could think of to resolve Tamara’s concerns.

The court agreed she had no case. Xerox acted fast and went even further when Tamara wasn’t satisfied with the results of the investigation. When she needed an accommodation to deal with her alleged anxiety and flashbacks, it moved her away from the co-worker. It never retaliated against her or cut her pay and benefits. There was nothing else a reasonable employer could have done or was required to do. Her case was dismissed. (Ciulla-Noto v. Xerox, No. 09-CV-6451, WD NY, 2012)

Final note: Remember, even a harass­­ment charge that ends inconclusively can leave the employee suf­­fer­­ing. You have an obligation to address her concerns. If there is evidence of disability (in this case, anxiety and panic attacks) you should engage in the ADA-mandated interactive process to try to find reasonable accommodations. A transfer to another location may be reasonable.

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