June 24, 2020

Don’t Delay; Act Right Away! Harassment Intervention

This might have been an easy fix. An employer’s learns of harassment, investigates, finds the complaint credible, takes corrective action, and receives no more complaints; the harassment ends. Then, so does the legal claim.

Sadly, not in this case.  The EEOC reports that the employer knew of the harassment. The manager’s conduct was “well-known” throughout the company. Not only did the employer allegedly take no action to correct it, the HR Vice President reportedly egged it on!

Now the employer faces a lawsuit seeking compensatory damages, punitive damages, back pay (one employee felt compelled to quit because of the harassment), and injunctive relief to prevent harassment in the future.

The EEOC’s Regional Attorney put it pretty succinctly, “Employers who are aware of sexual harassment in the workplace have a legal obligation to quickly end it.”

Tip #1: Remember that if an employee is harassed by a manager or supervisor the employer may have to show that it took reasonable care to prevent the harassment as well as correct it.  Train, train, train your managers and staff.  Let your employees know to whom they can report harassment, that they should report it, whether as a victim or witness (Bystander Intervention), and that they have the right to be free from retaliation for reporting or participating in a related investigation.

Tip #2: If an employee is harassed by a manager or supervisor, and that harassment results in a tangible employment action (such as demotion or firing), then all bets are off. Even if you did a beautiful job of prevention (well, as best you could) and correction, the employer may be held strictly liable and the individual manager may face some legal liability as well (intentional infliction of emotional distress is popular with the Plaintiffs’ bar). Provide managers and supervisors with supplemental training. Ensure they understand the liability they can create for themselves, the company, and how to avoid it.