An effective sexual harassment policy that includes prompt investigation of any complaints of physical touching is key to prevailing in a sexual harassment lawsuit. That’s because an employer that stops unwanted behavior before it escalates won’t be held liable.
What should your policy include?
First, the policy must be clear. Employees should know simply from reading it that certain behavior has no place in the workplace, won’t be tolerated and must be reported.
Second, the policy must outline how to report suspected harassment in a way that bypasses a supervisor if he or she is the harasser.
Third, employers must have a way to immediately investigate complaints and to take action right away even if the alleged harassment isn’t severe. For example, if an employee complains about touching that isn’t overtly sexual, that touching must still stop. That way, it can’t escalate.
Finally, the policy should include follow-up to ensure such behavior has stopped.
Recent case: Loralie, a loss prevention manager for a J.C. Penney store, got excellent reviews for her work and earned regular pay raises. However, she was also criticized for how she interacted with some of her subordinates. At least one toldduring an exit interview that he quit because he couldn’t work well with Loralie.
Then Loralie sent a series of emails to her boss, complaining that another manager at the store who worked in menswear was harassing her. She described in detail three incidents in which the menswear manager allegedly touched her shoulders, put his arm around her or hugged her.
Following its sexual harassment policy, Penney’s management spoke with the alleged harasser to get his side of the story. He admitted touching Loralie but denied that he harassed her. In fact, he said each time he touched or hugged her he was doing so in response to a stressful situation in which he thought Loralie needed a hug or other sympathy.
He agreed that he would never touch Loralie or any other employee again, apparently accepting that they might misinterpret his intentions.
Later, Loralie was asked whether the alleged harassment had stopped. She reported that the manager never touched her again.
Loralie was later discharged forbecause her relationships with her subordinates didn’t improve and because she refused to answer questions about some of her interactions with them. Plus, she allegedly printed documents from the store computer records and removed them from the premises in violation of company confidentiality rules.
Loralie sued, alleging she had been forced to work in a sexually hostile environment.
The court dismissed her claim. It reasoned that the touching wasn’t severe enough to create a hostile work environment and had stopped as soon as she complained. In short, Penney’s sexual harassment policy was effective—it let Loralie report perceived harassment and stopped it promptly. (Musolf v. J.C. Penney Company, No. 12-1591, DC MN, 2013)
Final note: Regularly review your sexual harassment policy to make sure it is working as intended. Are complaints handled promptly? Does someone follow up with the complaining employee after the complaint is resolved?
Make sure specific individuals are responsible for each step.
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