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Cut your liability: Suspend and transfer harassers

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in Discrimination and Harassment,Employment Law,Human Resources

Let’s say you promptly investigated a sexual harassment claim and conclude that an employee engaged in conduct that offended sensitive employees but wasn’t outrageous. What do you do?

If your aim is to stem a brewing problem, it pays to do more than issue a verbal warning.

Your best bet: Briefly suspend the offender and perhaps transfer him. That shows others you mean business and eliminates any possible retaliation or further escalation of the harassment.

Recent case: Pernille Funk, a firearms instructor for the Federal Air Marshal Service (FAMS), complained that some co-workers didn’t treat her with respect and seemed to want to return to the days of an all-male marshal service.

Funk claimed that two fellow instructors made sexist comments, tried to undermine her authority and used excessive force against her during training sessions.

The FAMS investigated her complaint and suspended the offenders. In a written warning, it said they had engaged in “unprofessional conduct” by creating a possible hostile environment and using physically intimidating tactics against Funk. Then it transferred them.

Funk sued anyway, but the court tossed out her case. It said the suspensions and transfers sent a message that the FAMS takes sexual harassment seriously. That message was designed to prevent not only retaliation against Funk but also future harassment of others, and it relieved the employer of liability for the earlier incidents. (Funk v. Chertoff, No. 06-1410, DC NJ, 2007)  

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