Sexual Harassment Claims Under the Microscope

By Rick Dacri, Dacri & Associates LLC

If you think because you have never had any complaints about sexual harassment that you are safe, think again. Without constant vigilance and a proactive plan in your organization, you could find yourself on the wrong side of a lawsuit.

I was recently engaged to serve as an expert witness in a sexual harassment case. The plaintiff’s attorney wanted me to provide opinion on employer best practices in preventing sexual harassment in the workplace. In this situation, a female employee, after repeated warnings, was fired for poor performance. The evidence against her was solid. The termination was appropriate—maybe. The fired employee hired an attorney and sued the company claiming sexual harassment. Here’s where it gets ugly. The plaintiff’s attorney put the company under a microscope. The attorney’s goal was to show that the company was not properly protecting their employees and therefore must be complicit in the harassment. The attorney focused with laser precision on the alleged weaknesses of the company’s sexual harassment program; how the company responded or failed to respond to complaints; supervisor’s ineptness in addressing a brewing problem; and the inadequacies of the company’s orientation program, its management training and employee education initiatives. By exploiting the company’s vulnerabilities, the attorney attempted to demonstrate that the company was guilty and therefore should pay the employee a huge settlement.

The company was not without fault. The employee’s supervisor was crude and made inappropriate comments. The company’s policies were outdated; their managers and supervisors had weak managerial skills. They did not have the proficiencies to recognize the volatility of this situation and therefore did nothing. Their training around harassment was merely passively viewing a video years before. Though the termination in this case may have been justified, it was done coldly, clinically. They blew it big time. The alleged victim left the company angry and she wanted to exact revenge. She hired a lawyer. This was a textbook case of what a company should not do.

Was the company guilty of harassment? That’s what a jury will decide…and that may be the biggest offense of all. This case could have been prevented and the company could have saved tens of thousands of dollars, not to mention lost time preparing and fighting the claim, ugly publicity (yes, these claims hit the papers), and tarnished reputations. In sexual harassment claims, no one wins, except the attorneys.

So what can we learn from this claim? Organizations that have in place clear policies, train and educate their managers and employees, have consistent management practices that address discrimination and harassment issues, and nurture a respectful workplace culture, will find that discrimination and harassment claims become rare or never occur at all.

There are four key strategies to eliminate claims of discrimination and harassment:
1. Invest heavily in management training. Train all your managers annually in employment law basics, communication skills, and how to treat employees with respect.
2. Review all your human resource practices. Focus on hiring, orientation, promotion, discipline, layoffs/termination, performance appraisals and documentation.
3. Have a broad anti-discrimination and anti-harassment policy. The courts and the EEOC interpret having no policy negatively. Include a complaint procedure, language discouraging inappropriate behavior, and language alerting employees that all employees should file claims promptly.
4. Follow your state law guidelines. Know your state laws to ensure compliance.

In addition to these broad strategies, incorporate these specific guidelines today:
1. Issue a written harassment policy annually to all employees and to all new employees at the time of hire.
2. Discuss your policy on harassment at each employee’s orientation.
3. Take immediate and decisive action in response to any conduct of this type.
4. Establish a complaint procedure and inform all employees of it.
5. Investigate all complaints promptly, objectively and efficiently.
6. Encourage employees to report harassment to management before it becomes severe or persuasive.
7. Take appropriate disciplinary action.
8. Maintain confidentiality to the extent consistent with the investigation.
9. Protect anyone who brings a complaint and all witnesses from all forms of retaliation.
10. Train all managers and supervisors annually in sexual harassment procedures and inform supervisors of their responsibilities and potential liabilities. Include discussion on expected behavior in the workplace and where and how to file a complaint. Make sure supervisors understand what they can and must do and what they cannot do.
11. Keep a record of all training and who attended.
12. Educate all employees annually on sexual harassment procedures.

Harassment claims can be prevented. Take the steps necessary to ensure claims are not brought against you or your organization.
 

Rick Dacri is a human resource consultant, featured speaker at regional and national conferences, and author of the book “Uncomplicating Management: Focus On Your Stars & Your Company Will Soar.” Since 1995 his firm, Dacri & Associates has helped organizations improve individual and organizational performance. Rick connects with people in a positive and challenging way to offer practical solutions. He can be reached at 207-967-0837, or via email at rick@dacri.com