Employers can escape liability for most sexual harassment by implementing an effective sexual harassment policy, investigating complaints and taking prompt action.
When the alleged harasser is a supervisor, employers aren’t liable if there was no tangible employment action taken—the harassed employee wasn’t fired, demoted or otherwise punished—and the harassment was stopped promptly.
But it doesn’t always work out so neatly in larger organizations. For example, an employee complains about sexual harassment, and the company launches an investigation. If the conduct was largely private, it becomes a he-said/she-said situation. That’s when most employers separate the two. If the harasser is a supervisor, the victim may get a transfer and a new boss.
And then the employer closes the book on an ugly issue.
Fast-forward a few years, a few retirements, a few reorganizations. Suddenly, the two again work in the same building and the alleged harasser is again the supervisor. The harassment begins anew. That’s a recipe for a jury trial, which is what happened in one recent case.
Recent case: Mary Tate complained that her supervisor, with whom she was required to meet daily in his office, propositioned her and made lewd gestures while leaning back in his chair.
Tate complained to HR, which investigated. It said her complaint was inconclusive, largely because everything happened in a closed office. But HR did transfer Tate, so she had a new supervisor.
Four years later, after several retirements among HR staff and some personnel reshuffling, Tate found herself being supervised by the alleged harasser.
She quit and sued, claiming she couldn’t take the harassment anymore.
She told the court that her supervisor immediately went back to his old ways. Tate claimed that over the course of 18 months, her boss touched himself in the crotch every time they met in his office—which was almost daily. He also allegedly touched her buttocks several times.
Tate said she often had to leave work early because she got migraine headaches from the stress. She was eventually diagnosed with post-traumatic stress disorder. When she complained to HR, the response was the same as the first time—inconclusive. That’s when she quit and sued.
The court said the case should go to trial on the premise that the employer hadn’t fixed the problem after all. (Tate v. First Citizens Bank and Trust, et al., No. 5:07-CV-492, ED NC)
Final notes: Make sure you keep track of all harassment complaints, including those you’ve ostensibly solved. Brief new HR staff on past problems and sensitive positions so you don’t end up inadvertently putting the two parties back together.
The bottom line is that you must actually fix the sexual harassment problem and prevent it from recurring—even if you weren’t entirely convinced there was any actual sexual harassment. A jury may see things quite differently and choose to believe the accuser rather than the alleged harasser. The jury may see your sexual harassment policies as ineffective and useless.
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