I recently had the pleasure to moderate KPA’s first HRCI approved human resources webinar, “Sexual Harassment & #MeToo,” presented by Alec Beck, a partner at FordHarrison. Yep, it’s a topic that continues to make waves and, judging by all the questions that came in from our audience, it’s still causing employers a lot of heartburn.
I’m sharing these questions and Alec’s answers with you in hopes that it helps you better navigate this tricky terrain and reinforce a positive, safe work culture.
Q: What would be the best course of action if someone complains about an owner of the company?
A: This is a classic problem. The owner should remove himself/herself from the process, and somebody (even the owner) needs to bring in a third-party to investigate. If that’s not feasible, it should be somebody other than the owner (but if it’s someone else who works for the owner or is affiliated with the owner, it’s subject to attack as a biased investigation). It’s best to get someone else in there to investigate and make recommendations. At that point, the company will need to take action on the recommendations. It’s an awkward process, but that’s what the courts have approved.
Q: Sometimes we get comments from employees who say they don’t like how another employee is “looking at them.” Any advice on how to handle something so subtle as that behavior?
A: Take it seriously and make an appropriate investigation. Keep in mind, that “appropriate” in this case might not mean too much investigating. However, leering or gawking at coworkers CAN be a problem, and if someone is doing it, he/she should be counseled to stop.
Q: Did you say that if after we investigate and find that sexual harassment took place that we need to do a remedial action to end it?
A: Yes. Of course, figuring out what “remedial action” means is always the question. If it’s a clear-cut case, and it’s a real problem, you might terminate the harasser. For lesser problems, you can come up with less drastic solutions.
Q: If an employer is investigating a complaint, does the reprimand have to be in writing, and does the person being accused have to sign it?
A: No. It all depends on the severity of the conduct and the extent of the reprimand. Sometimes a verbal reprimand is fine. If it’s a more egregious case, then something in writing is appropriate (and if it’s your practice to have employees sign, then he/she should sign). For very egregious cases, termination of employment is probably appropriate.
Q: How do you define “fix it” in the context of alleged sexual harassment? First, log the employee’s complaint, HR investigates, and then “fixes” the situation as needed/appropriate?
A: Yes. We need to make sure that the harassment stops, doesn’t reoccur, and that there is no retaliation against the complaining employee. Depending on the circumstances, the “fix” can be anything from an informal verbal counseling session to termination of employment. It all depends on what you find.
Q: Can it be considered a hostile work environment if a manager manages by fear and intimidation (i.e., bullies people) even though it isn’t directed at any protected class?
A: This goes to our discussion about the EEOC’s current position on “civility” in the workplace. The answer is probably, “Yes,” at least from a human resources best-practice perspective. A manager who manages like that will inevitably create lawsuits, and whether or not they are “technically” something that can be analyzed under Title VII, they are still difficult and expensive to defend (plus that manager creates bad morale for everyone). If the manager is one-of-a-kind and irreplaceable, you might put up with some behavior, but there aren’t many of those people in the world. Also, keep in mind that the EEOC continues to push for a basic civility standard, and the law might go in that direction.
Q: Does it depend on what state you work in whether a supervisor can be sued personally, in addition to the company itself?
A: For straight harassment, yes it does. Some states recognize it, and some don’t. Under federal law, there is no individual liability in this area (there is in other employment law areas).