I'm an employment litigator. I defend employers in lawsuits brought by employees claiming discrimination, sexual harassment, or any of what is becoming an almost limitless number of other potential claims. It also means that employers really don't want to have to call my office. Litigation is expensive, time-consuming and unnerving – and this is even if you win. With some simple preventive steps, a lot of litigation could be avoided. This is especially true in the area of sexual harassment.
A New York employer did not take preventive measures and is now being sued – by the alleged harasser.
The Second Circuit Court of Appeals held that an accused sexual harasser may file suit for sexual discrimination against his employer when the employer does not conduct its own investigation and instead assumes that the accused was guilty based on gender stereotypes. In that case, the employer defended the termination, stating: "I really don't have any choice. [She] knows a lot of attorneys; I'm afraid she’ll sue me. And besides, you probably did what she said you did because you're male and nobody would believe you anyway."
The employer itself performed no investigation. The moral of this story: Without a thorough investigation, you can open yourself up to liability from not only the individual who was allegedly harassed, but also by the alleged harasser.
An employer who conducts an appropriate investigation may protect itself from later liability in court. Admittedly, dealing with litigation is unpleasant, and I know you'd all like to avoid calling me. By following the four steps outlined below, calls to my office should become less frequent.
Conduct A Complete and Full Investigation
According to the U.S. Supreme Court (and a lot of other courts, too) an employer faced with a claim of sexual harassment must adequately investigate the claims and take prompt and appropriate remedial action designed to end the harassment to avoid liability.
First, the investigation needs to begin promptly. Do not wait weeks before performing the necessary interviews and fact-finding. Start immediately. Second, and most important, take the necessary actions to prevent future harassment of the victim. What action is appropriate will depend on the circumstances of each case. If the harassment stops, courts will likely find that the employer properly addressed the issue. If not, you will have to try again.
Get Signed Statements From Interviewees
Every allegation of sexual harassment should be taken seriously. When an employee makes an allegation, a trained employee should be appointed to investigate the claims. The investigator should sit down with the complainant and have him or her set forth any and all allegations in a written statement.
In the best of all worlds, the complaining party will sign the statement, but don't make this a condition of conducting the investigation. Courts don't like it when you impose conditions on people who come to you with a complaint. Then, the investigator should speak with the accused harasser. After hearing both sides of the story, the investigator should follow up by interviewing other employees that both the accused and accuser suggest, along with others who may have been present. It is a good idea to get every interviewee’s statement in writing.
Good Faith Efforts and Limited Contact
The employer may investigate in whatever manner it finds most efficient and effective; a harassment victim cannot force the employer to take a specific corrective action. But it is advisable to separate the two employees as much as possible during the investigation, without changing their work or hours in such a way that it creates an adverse employment action.
And remember, if you need to move someone to keep them apart, don't move the alleged victim. You may just get yourself a little retaliation claim to go along with your sexual harassment claim.
In the end, the investigator will usually have to make a credibility determination based on the investigation. The investigator should consider the credibility of the parties and witnesses, including any evidence that may corroborate a party’s account of events. Don't make your decisions based on stereotypes or preconceived notions. Base it on the facts.
You should take some comfort in the fact that you don't have to be right. You just need to have a good faith belief in the conclusion you draw and the action you take and you should be all right. If you do have any questions give me a call at (616) 752.2418. Not only can we help you win your lawsuit, we can help you avoid it in the first place.