Failure to Act on a Sexual Harassment Report Can Cost Employers Far More Than An Investigation
Often, a finding of unlawful sexual harassment stems from the employer’s failure to act on reported complaints.
This was the focus of a case where the Equal Employment Opportunity Commission (the EEOC) sued a former cellular phone retailer in the U.S. District Court for the Eastern District of California for failing to act on reports of harassment of a teenage female store employee.
What kinds of reports?
Oh, you know, pretty harmless stuff like repeated requests for sex from a sales manager and sexual assault by the same sales manager at the company’s holiday party.
When the drinks flow, good behavior may go.
That’s what the EEOC claimed anyway.
I kid, but having had teenaged daughters - who are now young women in their 20’s - I cringed.
Anyway, not only did the company allegedly fail to take action, but it allegedly allowed the sales manager to keep working with the teenaged employee even after she filed a criminal complaint against him. The employer would transfer the teen employee.
According to the EEOC, no effective remedial action was taken in response to the employee’s complaints. Instead, the company terminated her after she could not work her harasser and began to mentally unravel.
Today, the EEOC announced that the Commission and the company settled the matter for $107,916 and an agreement to implement trainings and strengthen anti-discrimination policies.
You can read the EEOC’s press release here.
What Is Sexual Harassment?
We have not examined the nuts and bolts of sexual harassment for awhile with so much going on in the world!
So, let’s recap.
Sexual harassment may be harassment because of a person’s sex as well as inappropriate touching. As defined by the EEOC, sexual harassment may include unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature, as well as offensive remarks about a person’s sex.
When does it become illegal? Harassment violates the law—Title VII of the Civil Rights Act of 1964—when it is so frequent or severe that it creates a hostile or offensive work environment. Some state laws have lower standards on their books.
A hostile work environment occurs when an employee is subjected to unwelcome verbal or physical conduct of a sexual nature, and the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.
That’s what the EEOC alleged here.
Why Does the Employer Have to Pay For the Sales Manager’s Wrongdoing?
Two words: vicarious liability.
An employer may be held liable for the actionable harassment of its employees where it either ratifies or acquiesces in the harassment by not taking immediate and/ or corrective actions when it knew or should have known of the conduct.
Ok, and Retaliation?
I’m not done. Once an employee complains to the Human Resources Department or a supervisor about sexual harassment, like the employee in this recent EEOC settlement did, if the employer then takes any adverse action against the employee, like say, reducing the employee’s hours so they earn less income, the employer can be held liable for retaliating against the employee for complaining about discrimination.
Why?
Informing management—whether it’s a supervisor, manager, or Human Resources Department—about unlawful workplace discrimination is “protected activity” under Title VII, which prohibits an employer subjecting an employee to an “adverse action” (demotion, from termination, etc.) when that employee has opposed any practice made an unlawful employment practice by Title VII.
As I wrote here and here, reducing an employee’s compensation or job duties while offering her what is tantamount to a demotion presents a classic example of retaliation, also prohibited by Title VII.
And, as we learned with the employer who asked the employee to cook for him while in the nude, employers should take all complaints of sexual (or racial or other protected class) harassment very seriously—starting with a thorough investigation of the matter and corrective action, if needed, pursuant to your Employee Handbook’s EEO policy (which you all have, right?).
Best Practices for Employers
You have heard these legal nuggets of wisdom before:
Have a strong, clear anti-sexual harassment policy and investigation procedure set forth in your employee manuals and handbooks and follow your policy. Your handbook should describe prohibited conduct and provide examples as well as complaint procedures.
Have a top-down culture of zero tolerance. If an employee knows her claims will be taken seriously and investigated, she is more likely to report any perceived sexual harassment or discrimination, and you can avoid a Charge of Discrimination from the EEOC.
Maintain and enforce a strong anti-retaliation policy in your workplace. Clarify for your employees in black and white that if an employee reports sexual harassment or discrimination, she will not suffer retaliation. This encourages reporting, which is beneficial for your company’s workplace morale, attrition levels, and reputation.
Regular, interactive training (about which we discuss here and here), tailored to your workplace and promoted by senior leaders, that teaches managers how to recognize and respond to conduct that could be construed as or lead to unlawful harassment.
Thoroughly document any employee’s claim of sexual harassment as well as the steps you take to investigate and correct it, if warranted.
The EEOC’s Strategic Enforcement Plan for Fiscal Years 2024-2028 (SEP) and recently issued outreach initiative prioritize protecting vulnerable workers from employment discrimination, including teenage workers employed in lower wage jobs.
Consider any changes to promote an organizational culture of respect, accountability, and one that does not tolerate sexual harassment.