EMPLOYER CONSIDERATIONS REGARDING SEXUAL HARASSMENT
Employers may be held liable in cases of employment-related sexual harassment. As such, employers are recommended to undertake reasonable care to prevent and promptly correct such harassment. For instance, this generally requires an employer to establish, disseminate, and enforce an anti-harassment policy and complaint procedure (EEOC, 1999).
Liability for Harassment by a Supervisor
According to federal law, an employer is always responsible for sexual harassment by a supervisor that culminates in a “tangible employment action” (a significant change in employment status). If the harassment did not lead to a tangible employment action, the employer is still liable unless it proves that: 1) it exercised reasonable care to prevent and promptly correct any harassment, and 2) the employee unreasonably failed to complain to management or to avoid harm otherwise.
Examples of tangible actions include hiring, firing, promotion, demotion, undesirable reassignment, or a decision causing a significant change in benefits, compensation decisions, and work assignment. For instance, a supervisor engages in sexual harassment by firing or demoting a subordinate because they reject the supervisor’s sexual demands or by promoting a subordinate because they submit to the supervisor’s sexual demands (EEOC, n.d.-g).
Preventing and Correcting Harassment
Employers should establish, distribute to all employees, and enforce a policy prohibiting harassment and setting out a procedure for making complaints. In most cases, the policy and procedure should be in writing.
Small businesses may be able to discharge their responsibility to prevent and correct harassment through less formal means. For example, if a business is sufficiently small that the owner maintains regular contact with all employees, the owner can tell the employees at staff meetings that harassment is prohibited, that employees should report such conduct promptly, and that a complaint can be brought “straight to the top.”
If the business conducts a prompt, thorough, and impartial investigation of any complaint that arises and undertakes swift and appropriate corrective action, it will have fulfilled its responsibility to “effectively prevent and correct harassment” (EEOC, n.d.-g).
Establishing an Anti-Harassment Policy
An employer’s anti-harassment policy should make clear that the employer will not tolerate all types of harassment, including those based on race, sex, religion, national origin, age, disability, or genetic information, or harassment based on opposition to discrimination or participation in complaint proceedings. The policy should also state that the employer will not tolerate retaliation against anyone who complains of harassment or who participates in an investigation (EEOC, n.d.‑g).
Sexual Harassment Complaint Procedure
The employer should encourage employees to report sexual harassment to management before it becomes severe or pervasive. The employer should assure employees that it will protect the confidentiality of harassment complaints to the extent possible.
TAKING COMPLAINTS
The employer should designate more than one individual to take complaints and should ensure that these individuals are in accessible locations. The employer also should instruct all of its supervisors to report complaints of harassment to appropriate officials. Because a supervisor may be the one committing harassment or may not be impartial, it is advisable for an employer to designate at least one official outside an employee’s chain of command to take complaints in order to assure that the complaint will be handled impartially.
INVESTIGATING COMPLAINTS
An employer should conduct a prompt, thorough, and impartial investigation. The alleged harasser should not have any direct or indirect control over the investigation. The investigator should interview the employee who complained of harassment, the alleged harasser, and others who could reasonably be expected to have relevant information (EEOC, n.d.-g).
PROTECTING THE COMPLAINANT
Before completing the investigation, the employer should also take steps to make sure that harassment does not continue. If the parties have to be separated, then the separation should not burden the employee who has complained of harassment. An involuntary transfer of the complainant could constitute unlawful retaliation. Other examples of interim measures are making scheduling changes to avoid contact between the parties or placing the alleged harasser on nondisciplinary leave with pay pending the conclusion of the investigation.
An employer should also make clear that it will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. For example, when management investigates a complaint of harassment, the official who interviews the parties and witnesses should remind these individuals about the prohibition against retaliation. Management also should scrutinize employment decisions affecting the complainant and witnesses during and after the investigation to ensure that such decisions are not based on retaliatory motives (EEOC, 1999).