In the clear on sexual harassment charges, but still on the hook for supervisor retaliation

With all the publicity surrounding the #MeToo social media movement against workplace sexual harassment, many employers are wisely reviewing their policies and complaint processes.

There’s a new understanding that merely having a policy isn’t enough. Employers must publicize their policy and make clear to every employee at every level that the organization takes every harassment complaint seriously.

But don’t let your anti-harassment zeal lull you into a false sense of security.

It’s true your organization may not be liable for co-worker harassment if the harassed employee knew how to report harassment but failed to use the system. However, there can still be consequences if a supervisor retaliates against an employee who complained or threatened to complain but didn’t actually report the harassment.

The fact is, even if an employer isn’t liable for sexual harassment, it can still be held responsible for any retaliation against the harassed worker.

Recent case: Michael took a job as a custodian at an elementary school. Catherine was the head custodian and directed his day-to-day work. She was not, however, a supervisor with the authority to hire, fire or otherwise manage her subordinates.

Michael later complained that Catherine sexually harassed him and created a hostile work environment. For example, he claimed she touched, punched and grabbed him several times per week. He accused her of regularly discussing sex and her sexual preferences. He also described an incident in which she stood behind Michael, lifted her shirt, put her hands on her head and performed a lewd “wiggle-dance.” He told her to stop, to no avail.

For over a year and a half, Michael said nothing to anyone in HR or management about the conduct.

The school district had a sexual harassment policy, which included a detailed complaint procedure, a complaint form, examples of unacceptable conduct, a nonretaliation section and an explanation of the employer’s policy on confidentiality. The employer distributed the policy to all new hires and Michael had signed an acknowledgment that he had received a copy when hired.

The employer also ran regular sexual harassment training programs; employees had to register. Michael had attended two such sessions.

When Michael finally did complain, the school district immediately investigated the allegations and disciplined Catherine.

Michael sued anyway. The court dismissed his sexual harassment and hostile work environment claims because the harassment took place for a long period of time before Michael came forward. Because the employer immediately acted when he complained, it had met its obligation to stop the harassment once it learned of it.

However, Michael also claimed that he had been retaliated against. He said Christina had assigned him more strenuous work and more menial tasks after he complained. The court said those actions—although they weren’t adverse employment actions, such as demotion or discharge—could still discourage someone from complaining. The court said Michael’s retaliation claim could go to trial. (Murphy v. Wappingers Central School District, et al., SD NY, 2018).

Final note: This case illustrates that it isn’t just men who engage in harassing conduct. Women sometimes do, too. Include female-on-male harassment as an example in your training materials.