Legal Trends: Prevent Now or Pay Later

Recently the Supreme Court issued two decisions that attracted a great deal of attention. These decisions will make it easier for employees to sue and will provide them with an incentive to do so. However, they also give employers insight into ways to avoid harassment or end it before it becomes an actionable offense.

In Faragher vs. City of Boca Raton (No. 97-282), the Supreme Court held that a former employee could sue her employer even though she never complained to senior management of harassing behavior.

In Burlington Industries Inc. vs. Ellerth (No. 97-569), the court held that an employee who refused the unwelcome sexual advances of a supervisor could sue her employer, even though she suffered no tangible job loss.

The good news is that, in both cases, the court stopped short of imposing strict, or absolute, liability on employers. The exception: cases where workers suffer a tangible job loss, such as discharge, demotion or denial of promotion. Where there is a tangible loss, employers are liable even if they tried to prevent or correct the harassment.

Making a defense

In cases where the employee has not suffered a tangible employment loss, employers can successfully defend themselves by proving that they took both of the following steps:

  • Exercised reasonable care to prevent and promptly correct sexual harassment.
  • Offered preventive or corrective opportunities and the employee unreasonably failed to take advantage of them. These defenses focus on practical issues as opposed to legal niceties. To make the best use of them, employers should, at a minimum:
  • Develop and distribute a sexual harassment policy that explains-in easy-to-understand terms-the types of prohibited behavior.
  • Develop and distribute a complaint procedure with multiple points of access. Design it so no employee can reasonably fail to utilize it.
  • Train supervisors on what behavior they must avoid and how they should respond to inappropriate behavior from others.
  • Educate employees on their rights and responsibilities under the company’s policy and complaint procedures.
  • Provide guidelines to senior managers showing how to conduct investigations that recognize the rights of all the parties involved.
  • Take deliberate and decisive corrective action whenever a supervisor or someone else violates the sexual harassment policy.

Policy statement

The high court’s emphasis on prevention means employers that do not have a sexual harassment policy are legally vulnerable. As a result, employers should develop a policy specific to sexual harassment; a general nondiscrimination pledge probably will not suffice.

For the policy to have value, it must be disseminated to all employees. The employer in the Faragher case failed to disseminate its policy, and the high court focused on this deficiency.

The policy should define and condemn both quid pro quo and hostile work environment harassment. However, the policy also should provide practical examples of inappropriate behavior. The average employee might not understand a confusing, legalistic definition of harassment, but everyone should understand a ban on discussing sexual desires, fantasies, experiences or the like.

Complaint procedure

Although creation of a policy is vital, it is equally crucial to establish a procedure that employees can use to lodge complaints. The Supreme Court stopped short of mandating that employers provide complaint procedures, but the justices did hold that employers may escape liability if they have a procedure in place and employees fail to use it.

Procedures that don’t allow employees to bypass their supervisors provide no legal defense, the Supreme Court ruled. As a result, complaint procedures must allow employees to speak to someone other than their supervisors.

The more people available to hear complaints from employees, the easier the complaint procedure is to use-and the less reasonable it is for workers to fail to take advantage of it. So, it makes sense to provide employees with multiple points of access, in addition to their supervisors.

Some employees may feel comfortable discussing alleged harassment only with someone of the same (or opposite) sex; make sure male and female managers are available to field complaints.

Some employers require employees to file complaints in writing. The advantage of this system is that employers can prove that employees failed to use the complaint procedure. Yet this requirement has weaknesses because employers cannot legally ignore oral complaints. Moreover, the written requirement surrenders to the employee the power of the pen. If you require employees to put their complaints in writing, what you may get instead are documents written by their lawyers.

What’s the solution? Accept complaints in either verbal or written form, but require employees to file appeals in writing if they are dissatisfied with the way their complaints initially were handled.

There are several advantages to this system. If employees file harassment claims without first filing a written appeal, they fail to make full use of the complaint procedure-a fact that can be used against them in court. The written appeals requirement also makes it tougher for employees to claim falsely that they told their employers they were dissatisfied with the handling of their complaints.

But by avoiding initial written complaints, employers ensure that the intake process remains informal, which is essential to the amicable resolution of complaints at the early stages.

In all cases, the complaint procedure should include absolute assurances against retaliation. Fear of retaliation is the number one obstacle to early reporting.

The complaint procedure also should address confidentiality. However, the assurance here cannot be absolute, because employers may have a duty to investigate. Assure employees that you will disclose complaints only to those who have a bona fide “need to know.” Ordinarily, this would be limited to those who have direct information about the complaint or a defense to the complaint.

Managerial and supervisory training

Managers and supervisors are the keys to preventing harassment, so they must be trained to understand their legal obligations. These obligations can be divided into the categories listed below. Generally, managers and supervisors must:

  • Refrain from engaging in quid pro quo or hostile work environment harassment. These terms should be defined broadly and practically for training purposes. Emphasize to supervisors that their authority in the workplace affects how their behaviors are perceived by others.
  • Receive guidance on how to respond to complaints of harassment. Managers and supervisors should report all complaints to the HR department, even if the employee asks that nothing be done. The HR department can decide whether to investigate; if it decides not to investigate, it can properly document the reason for that decision.
  • Respond proactively when they witness inappropriate behavior, even if no one complains. As far as the law is concerned, there is no difference between a supervisor who engages in harassing behavior and one who merely witnesses harassment but ignores it. In such situations, when supervisors say “I didn’t do anything,” it is an admission-not a defense.
  • Receive guidelines on how to remedy inappropriate behavior. Depending on the circumstances, possible remedies include non-punitive counseling, formal discipline and termination.
  • Ensure that no employee engages in prohibited retaliation. Unlawful retaliation can be economic (denial of a raise) or non-economic (unwanted assignments).

While a strong supervisory training program is absolutely essential if harassment claims are to be avoided, sometimes these training programs hurt the women who should be their primary beneficiaries. There is often a fine line between responding proactively and rescuing paternalistically. (Next month, this column will discuss how to ensure that your program does not promote stereotypes about women’s perspectives or encourage managers to avoid female employees as a means of forestalling claims and other unintended ills.)

Employee education

While many employers provide supervisory training, few educate nonsupervisory employees. Often, employers fear that educating employees will only encourage them to file claims.

Of equal concern is the expenditure of time and money in educating this significantly larger group. There is no denying that there is a cost to prevention. But the investment more than pays for itself if one court case is avoided.

The education should focus on behavior that employees must avoid. Most people will do what is right if they are told what that is. After receiving such an education, employees are more likely to avoid not only objectionable but also questionable behavior. With this heightened self-vigilance, there should be fewer claims.

But sensitizing is only half of the message. Employees also need to be empowered to confront harassers directly and use the complaint procedure. Despite the large awards in sexual harassment cases, most employees want only for the objectionable behavior to stop. They usually go to a lawyer only if they don’t feel they can handle the matter on their own.

When employees are empowered to confront harassers and/or file complaints within the organization, situations often can be resolved out of court. When employees fail to complain under these circumstances, this failure can work against them in court.

Investigatory guidelines

If we learned anything from the Anita Hill-Clarence Thomas controversy, it is the importance of looking at how we investigate harassment claims. The complainant must be treated with dignity and respect.

At the same time, the accused have rights too. While all harassment allegations should be taken seriously, not all allegations are true. An unfounded allegation can destroy a career or create an undeserving millionaire. Remember that the accused, like the complainant, is someone else’s mother or father, son or daughter.

To ensure due process and minimize legal exposure, employers should develop investigatory guidelines. These guidelines should be developed before a claim arises. Otherwise, emotion-not reason-will control and will make rational decision-making all but impossible.

Investigatory guidelines must address the following issues, among others:

  • When is there a duty to investigate, notwithstanding an employee’s wishes to the contrary?
  • How do you document the decision not to investigate?
  • Under what circumstances is there an actual, potential or perceived conflict of interest so that a specific manager should not be involved in the investigation of the complaint?
  • What kinds of questions should, and should not, be asked of the complainant?
  • How much information is the accused entitled to and what should be asked of him or her?
  • What kinds of questions can and should be asked of disinterested witnesses?
  • How should the information obtained during the investigation be documented?
  • Who should participate in the decision-making process?
  • How should credibility findings be made and documented?
  • What information about the decision-making process should be shared with each party?

Guidelines answering these and other questions should be in place so that investigations can proceed with dispatch, fairness and professionalism.

Corrective actions

The Supreme Court’s decisions focus on preventive measures and corrective actions. That means an organization’s sluggish or unenthusiastic response to a harassment claim can be used against it in court.

What’s worse, if your corrective actions are particularly unresponsive, a court may rule that your complaint procedures are so ineffective that employees can bypass them and go directly to trial; such a ruling would deny you the opportunity to resolve alleged acts of harassment internally, which is much more cost-effective.

To demonstrate that internal complaint procedures are valid, employers must take corrective action whenever they conclude an individual has engaged in inappropriate behavior. The degree of the corrective action will depend on several factors, including the severity and pervasiveness of the inappropriate behavior and the rank of the person engaging in it.

Generally, discipline should be handed down by a mixed-gender committee, as opposed to one individual. Diverse committees are more likely to consider all the relevant factors; they also are more credible. For example, a decision by one man that another man did not engage in harassment may appear biased. The same potential problem exists if one woman determines that a man did engage in sexual harassment.

Once a decision is made to administer corrective action, prove the reasonableness of the decision by documenting all pertinent facts. Generally speaking, it is OK for employers to come to an incorrect conclusion, provided that the conclusion was reasonable given the facts as presented.

Employers also should avoid proclaiming an employee’s guilt or innocence. Instead, focus on whether the behavior was inappropriate without putting a legal label on it.

Here’s why: Assume your investigation report states that a supervisor’s harassment violated the law. Now assume the victim is unhappy with how your firm handled the incident and she files a claim alleging you didn’t do enough to discipline the harasser. Normally, the victim would have to prove that the original harassment was serious enough to violate the law. But because your report admits that the harassment was “illegal,” you’ve made it easier for her to sue.

It is much safer-and perfectly legal-to discipline an employee for violating your policy, without mentioning whether the behavior was legal or not.

Refraining from using labels also helps avoid confrontations and their resulting delays. Labeling someone as a harasser carries such a stigma that the alleged wrongdoer may challenge your findings. But inappropriateness is less threatening, so it is easier to accept.

In taking corrective actions, employers must punish the harasser for wrongs that have been committed and make sure that the inappropriate behavior does not resurface. Follow-up meetings should be scheduled and documented on a regular basis. It also is critical to ensure that retaliation does not follow corrective action. If it does, the courts may not force employees to use your internal procedures before filing a lawsuit. Ensuring that there is no retaliation is an important part of the regular follow-up meetings. If there is actual or perceived retaliation, nip it in the bud.

Conclusion

The Supreme Court’s message to employers is clear: Prevention and correction are vital if employers wish to avoid liability for sexual harassment. Those who fail to heed this warning will invite suits by plaintiffs’ lawyers eager to take advantage of the burdens of proof placed on employers.

But even if there were no laws in this area, the Supreme Court’s focus on prevention and correction makes good business sense. Harassment adds no value to a business. To the contrary, when employees feel harassed, we lose the talent they otherwise would bring to our workplaces and, ultimately, business suffers.

Author’s note: This article should not be construed as constituting legal advice or pertaining to specific factual situations.

By Jonathan A. Segal

 


Jonathan A. Segal, Esq., is a partner in the Labor Law and Employee Relations Department of Wolf, Block, Schorr and Solis-Cohen LLP, a Philadelphia-based law firm. His practice concentrates on training managers, developing employment policies and implementing union prevention programs.

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