Sexual Harassment Investigations
You have probably already implemented policies and preventive measures to prevent or address harassment in the workplace. But SB 76 makes employers liable for sexual harassment by non-employees if the employer knows or should have known of the incident, and fails to take action. Plaintiffs continue to sue employers for sexual harassment in ever-increasing numbers.
The Investigation Process
The type of workplace investigation to be conducted is determined by the nature of the complaint. Sexual harassment investigations require interviews of the complainant, the alleged harasser and witnesses.
Diversified Risk Management, Inc. works closely with employment counsel to discuss all aspects of the investigation. When a workplace investigation is conducted at the direction of counsel, it may be privileged and not subject to disclosure to outsiders.
Our sexual harassment investigation team will learn the company's policies, procedures, rules and culture of the organization to aide in the investigative and information-gathering process. The workplace investigators will be able to gain the confidence and trust of those involved. If you bring in an interviewer who is not an experienced workplace investigator, the individuals involved may be less likely to discuss the details of the case.
The administrative or investigatory type interviews that we conduct in our sexual harassment workplace investigation are performed without coercion, threats, or promises of leniency. The individuals' admissions are detailed in both written and tape-recorded form in the presence of a designated company management witness.
Our firm does not make any recommendations concerning the form of disciplinary action to be taken. We will refer you to qualified counsel for legal advice in those respected areas. At the end of the investigation, we will provide a detailed report in order to assist management and counsel in their decision making.
We can provide post-investigation recommendations regarding sexual harassment prevention, education and training. These services are priced according to your needs.
How to Help Avoid and Prevent Sexual Harassment in the Workplace
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. There are two general forms of sexual harassment. They include unwanted sexual contact, and a hostile work environment.
Unwanted sexual contact is obvious. The employee is physically propositioned by another employee.
A hostile work environment situation is one where an employee may comment on another employee's appearance, circulate obscene pictures, give an employee sexual objects, ask about an employees sex life, or tell offensive jokes.
The best way to prevent harassment is through policies, training and management oversight. All these measures help protect employees should a workplace investigation become necessary.
Sexual Harassment Prevention Tips
- Have a sound sexual harassment policy in place.
- Communicate the policy effectively to employees.
- Make a reasonable effort to train all employees regarding the policy.
- Document all training sessions, attendees and follow up notices in appropriate files.
- Provide clear and effective procedures for employees to follow when they perceive sexual harassment or when it has occurred.
- Have a procedure in place to investigate sexual harassment incidents when they are reported.
- Apply the policy quickly and consistently when harassment is alleged to have occurred.
Sexual Harassment and Punitive Damages
An organization will be better able to defend a sexual harassment suit or other types of discriminatory harassment claims if it has a policy prohibiting such conduct. An employee handbook should describe the policy and provide an effective procedure for resolving harassment complaints internally.
The basis of defense in harassment suits is simple. Where (1) an employer can prove that it has exercised "reasonable care" to prevent and promptly correct any sexually harassing behavior; and (2) the employee plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer, or otherwise unreasonably failed to avoid harm; then (3) the employer will not be liable for the hostile work environment to that point.
Employee policy handbook updates and workplace training are needed to protect employers and should be reviewed by qualified legal counsel.