Sexual harassment in the workplace has recently gotten a lot of attention.
Companies caught in a scandal risk public embarrassment if their knowledge of sexual harassment behavior was handled inappropriately. Worse, there could be liability and punitive damages if nothing is done about the conduct, especially if it escalates.
“A company can’t be willfully blind to sexual harassment accusations made by employees,” says Ann-Marie Ahern, a principal and head of the employment law practice at McCarthy, Lebit, Crystal & Liffman Co., LPA.
“Employers must investigate employees’ claims, but the department responsible for investigating the allegations may not be best suited to effectively handle the situation.”
Smart Business spoke with Ahern about the handling of sexual harassment claims and how outside investigators can help.
What obligations do companies have when a sexual harassment claim is made?
There is no government oversight or mandatory requirement to report any sexual harassment allegations. However, if workplace sexual harassment conduct interferes with a person’s work, it can give rise to a lawsuit.
Where companies face the greatest risk of liability is when claims are made against a person who is near or at the top of the company hierarchy. In these instances, it’s easier for a company to be held responsible because that person may be deemed to be acting with the authority of the company, especially if the company knows or has reason to know of the conduct.
It’s in the best interest of a company that becomes aware of allegations of sexual harassment to investigate the claim. If the alleged conduct is substantiated, the company must take prompt, remedial action.
Failure to investigate promptly or appropriately can lead to liability for further harassment. If the harassment is substantiated, the employer should address it, either through discipline or termination.
What flaws exist in the typical protocols for reporting sexual harassment?
In a small company without an HR department, reporting an incident to management could be very uncomfortable if the manager is the harasser or is a close friend of the harasser.
While it’s unlawful for a company to retaliate against an employee who registers a complaint, practically speaking, a complaint of sexual harassment too often proves to be career-limiting. A complaining employee may be viewed as a troublemaker or not a team player and can be shunned or given little other choice but to quit, especially when the allegations amount to a ‘he said/she said.’
In larger companies, reports are made through the HR department. HR professionals or management, however, often do not conduct an appropriate investigation. Sometimes they are hesitant to substantiate a claim because it would put the company at risk for liability.
Other times, particularly where a high-level employee is the accused, the investigating employee is leery to find guilt. Often, the employee charged with investigating does not have the proper training or background to conduct investigations, or to understand what constitutes sexual harassment conduct under the law.
Who can help companies deal with workplace sexual harassment complaints?
There are employment lawyers who specialize in the investigation of sexual harassment complaints and there are companies that do nothing but investigate these types of concerns. This arrangement can benefit both employees and companies.
The harassed often feel more comfortable talking to an outside investigator because there isn’t a relationship within the company that might affect the outcome.
Companies can point to the outside investigator as neutral and unbiased. If the investigator finds there’s no harassment, it carries more weight and credibility than an employee making the same determination.
Sometimes companies are afraid to bring in an outside investigator because it means giving up control of the process and outcome. The landscape, however, is changing as it relates to sexual harassment in the workplace. Employers should be careful not to underestimate how current events will impact their response to sexual harassment allegations. ●
Insights Legal Affairs is brought to you by McCarthy, Lebit, Crystal & Liffman Co., LPA