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Volume 20, Number 1
Jan/Feb 2003

HOW TO ADVISE IN HARASSMENT CASES

By James R. Macy

Sex discrimination has long been prohibited in the workplace under the support of many federal and state laws. Although not specifically referenced in many of those laws, sexual harassment-a form of sex discrimination-also is prohibited. As the law continues to develop regarding prohibitions against sexual harassment in the workplace, it becomes even more important for practitioners to understand the definitions and to consider how to effectively advise clients affected by this topic.
Given the amount of publicity, articles, and news stories that have debated and sensationalized charges of and prohibitions against workplace sexual harassment, we might think claims of harassment have diminished. However, cases continue to develop across the country, and many state policies continue to keep the stakes high and the penalties severe. Although many cases of sexual harassment are handled by employment law specialists, as a general or solo practitioner, you should be familiar with at least the basics of a sexual harassment situation, whether or not you ever take a case.

Defining Harassment
A discussion concerning sexual harassment often begins, paradoxically, by defining what is not sexual harassment. Employees sometimes confuse the legal protection against sexual harassment with a panacea that covers just about any type of uncomfortable behavior, including personal disputes between employees. Harassment has sometimes been alleged by employees who have been disciplined for other things. Yet to qualify as harassment prohibited by law, an act must be attached to another legally protected category, such as gender.
Prohibited sexual harassment includes such things as unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature where an individual's employment or work performance could be jeopardized or where an intimidating, hostile, or offensive work environment results. A link must be made to the protected category of sex.

An Ounce of Prevention
It's important to help employers understand that there are a number of proactive steps that can be taken to prevent sexual harassment in the workplace from the start. In counseling employers, you can stress the importance of formal planning and procedures (which can be crucial should a case ever develop).
The first step is to help the employer put together an effective written policy prohibiting sexual harassment, ensure it's properly distributed, and follow up to check that the employees are able to understand and follow it.
This is why taking the time to draft a clear and comprehensive manual for employees is in everyone's best interest. The manual should detail not only definitions, rights, and prohibitions-with examples-but also a specific, step-by-step procedure for employees to follow in reporting a complaint, whether or not it eventually becomes a formal suit. Employees should be warned that failure to use the internal complaint procedure could jeopardize their ability to file a claim in the future.
Next you might advise the employer about effective training programs, which are another tangible step to stop harassment from occurring in the first place. Trainings for managers and for employees should be held separately because the responsibilities and potential liabilities are not the same; this also helps attendees ask the kinds of questions that are really on their minds.

Responding to a Complaint
Employees have a right to work in an environment free of the complications and stresses wrought by sexual harassment. At the same time, accused employees-managerial or not-have a right to preserve their good name and reputation. The employer must balance vindicating its efforts to maintain a proper work environment with minimizing its legal risks regarding violations of its policies.

An employer's responsibility when receiving a complaint is to act quickly and effectively in addressing it. Super-visors should understand that filing a formal complaint is not essential to initiating a response regarding sexual harassment-they should respond to things they see and hear regardless of formal complaints. Supervisors should know precisely what to do in the face of any sexual harassment concern, even if the employee indicates she is simply informing the supervisor and doesn't want any further action. If a claim concerns a hostile work environment, for example, the employer's being able to demonstrate it acted quickly in responding to the matter can be an affirmative defense in future litigation.
A good checklist for supervisors to follow might proceed like this: Upon receiving a complaint, the supervisor should notify both the accused and the complainant about it and reassure each that the matter will be handled professionally, quickly, and effectively. Both should be asked to cooperate and to avoid letting the complaint become a disruption within the workplace. The complainant should be reassured that she is protected from retaliation; the accused also should be reassured that no final decisions will be made without his input. It's often wise to caution the accused emphatically about the appearance of or actual retaliation against anyone involved in bringing or investigating the complaint. And all parties should be reminded that the matter is confidential and should not be discussed with anyone not in an official role.

Performing an Investigation
Sometimes an informal investigation is all it takes to address a complaint. Informal procedures include face-to-face meetings that could lead to actions such as simply eliminating offensive materials and/or providing corrective action. For example, if an employee uses an offensive coffee mug, informal intervention by discussing the matter with the employee and replacing the mug could be sufficient, if it is an isolated event.
When an informal investigation is not sufficient, the formal process outlined in the employee manual should be followed. After a complaint is filed, the employer should start the investigation with an impartial and thorough discussion with the complainant about the allegations. The complainant should provide whatever supporting facts and proofs exist, as well as a list of witnesses who might be able to support the allegations. Once this material is collected and the witnesses have given their statements, the investigator should conduct a full review of all documentary evidence, mandated company policies and procedures, and witness interviews. After this review, the investigator should meet with the accused employee, who should be given a fair opportunity to respond to the allegations and to offer information or possible witnesses who can support the defense. Further investigation may be necessary to follow up on witnesses or other factual evidence gained from the accused.

Determinations and Effective Response
Following the investigation, the lawyer can make recommendations for effectively responding to the matter. An investigation report should outline the steps taken in the investigation, summarize the evidence and witness testimony, and list the facts that have been determined.
The lawyer also may want to discuss with the employer recommendations based upon the facts of the investigation and include the suggestions in the report. If the decision is that no harassment occurred, the recommendation would call for a final conclusion. If the evidence is inconclusive and sexual harassment is not supported, you might suggest additional preventive measures or a review of work procedures to strengthen the employer's policies. If the finding is that sexual harassment did occur, recommendations should address ways to make the policy against sexual harassment even more clear to employees. In addition, it may be necessary to consider what discipline might be appropriate for the accused. The employer no doubt would find it worthwhile to review employee discipline procedures, eliminate questionable or offensive materials, establish intervention programs, and so forth. Employers always should keep in mind that proper procedures and investigations combined with effective response can eliminate unnecessary and expensive litigation. This alone should be all the motivation a business needs.