Warning: Courts may view especially young workers differently when it comes to the issue of harassment, affording them more leeway when they fail to use your company's harassment-reporting procedures.
Usually, it's possible to avoid liability caused by a supervisor's harassment by proving that your company has sound policies and practices to prevent harassment, and that the employee failed to take advantage of those policies. That was the situation in the following case, but the court still let the case go to trial because the alleged harassment victim was very young and easily intimidated.
If your employees believe, either rightly or wrongly, that filing a harassment complaint is a waste of time or threatens their job, your strong policies won't save you from the liability of one bad-apple supervisor.
The best antidote? Create the right environment so employees don't suffer in silence. Regularly reissue your policies on harassment and retaliation. Conduct anti-harassment training with all new hires, paying special attention to your youngest and most entry-level workers. Make sure they're aware that the buck ?doesn't stop with their supervisor, giving them multiple channels to air potential problems.
Recent case: A 17-year-old employee claimed her supervisor repeatedly made sexual comments to her, a situation that became worse when the 34-year-old supervisor forced her to have oral sex after a baby-sitting job at his house. The supervisor told her to keep quiet, saying they both would be fired if she reported his actions. He also told her that his father had influence with the company owner.
She didn't report the incident but later resigned. Seeking better pay, she returned to the company a year later and was assigned to the same supervisor. When the sexual comments started again, she reported his conduct, including the prior assault.
The company immediately began an investigation, but the supervisor resigned before he could be fired. The employee sued, charging sexual harassment. While a lower court sided with the company, saying the worker failed to use the company's harassment-reporting procedure, an appeals court disagreed and let the case go to trial.
Court's reasoning: Considering the girl's age, the retaliation threats and supervisor's claim of family influence, a jury could conclude that she had a logical reason for not reporting the alleged harassment and assault earlier. (Reed v. MBNA Marketing Systems Inc., No. 02-2705, 1st Cir., 2003)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Bias plaintiffs must suffer discrimination themselves
- At Jones Beach, fashion foul or was it age discrimination?
- Police called in response to workplace harassment? You must still act to stop future incidents
- No medical certificate? You can still run FMLA leave with PTO