Sexual harassment by a co-worker

posted by Neil Klingshirn  |  Aug 6, 2009 6:05 PM [EST]  |  applies to Ohio

Sexual harassment involves:

• unwelcome sexual advances;
• requests for sexual favors, and
• other verbal or physical conduct that is based on sex.

Sexually harassing conduct is unlawful if it:

• adversely affects an employee's job,
• unreasonably interfere with his or her work performance or
• creates an intimidating, hostile or offensive work environment.
  

An employer is not necessarily liable for a co-worker's sexual harassment,however, if the employer proves that it had a policy prohibiting sexual harassment that the victim unreasonably failed to use.

Employer liability for Harassment by a Co-worker

On the theory that an employee cannot hold an employer liable for the damage done by a co-worker unless the employer knew about and failed to prevent the damage, sexual harassment law allows employers to escape liability for co-worker harassment where the employer:

• gave the victims of the sexual harasser a way to complain about the harasser's conduct; and
  
• the sexual harassment victim unreasonably failed to complain about the sexual harassment; or
• the victim complained about the sexual harassment and the employer took prompt, remedial measures to stop and prevent it from happening again.
  

The idea is that the law will not hold a company responsible for sexual harassment that it does not know about and therefore cannot control.  However, the employer cannot turn a blind eye to harassment and, once the employer learns about co-worker sexual harassment, the employer must take steps to stop it.

Employer Duty to Investigate Sexual harassment Claims

Once an employee complains about sexual harassment, the employer has an obligation to:

• investigate the complaint of sexual harassment;
• take remedial measures, as appropriate; and
• provide some feedback to the employee who complained about steps taken to address the complaint.
  

Sexual Harassment Investigation

A reasonable investigation into the complaint of sexual harassment should include:

• a detailed questioning of the victim of the nature, frequency and effects of the harassment;
• assurances, as far as is possible, that the complaint will be treated with confidence;
• assurances against retaliation;
• a questioning of the accused to obtain admissions, denials and the accused's side of the story;
• identification of witnesses to any incident of sexually harassing conduct;
• statements from witnesses to any sexually harassing conduct.

If the sexually harassing conduct involved pictures, emails or other hard evidence, the employer should gather and preserve it.

At the end of the investigation, the employer should draw conclusions about what actually happened.  The employer typically has two or more conflicting versions of events. Therefore, the employer should, as best as it can, decide who is telling the truth or whether it is unable to decide who is telling the truth.

Appropriate Remedial Action

An employer should craft a response to a complaint of sexual harassment that is designed to address what it found in the investigation.  If a co-worker with a good work record that is free of similar complaints engaged in sexually harassing conduct, a written warning or day's suspension may be sufficient to prevent similar conduct in the future. 

If the accused has repeatedly harassed others in the past, however, an employer may have to terminate the harasser, or else risk being held liable for the harasser's conduct in the future.  In addition to meting out appropriate discipline, an employer who discovers sexually harassing conduct should engage in anti-harassment training. 

If an employer concludes that no harassment occurred, it may choose not to reprimand or discipline anyone. If the employer concludes that the complaining employee did not have a good faith basis for making the complaint, the employer may be within its rights to discipline the complaining employee for making a false accusation.

Prohibition against Retaliation

 
As long as victims of sexual harassment have a good faith belief that their co-workers are sexually harassing them, an employer cannot retaliate against them for making a complaint.  Employers must also prevent co-workers from retaliating against complainants. Importantly, the victim of retaliation does not have to win his or her harassment suit to win a retaliation claim.  As long as the employee had a good faith, even mistaken belief, that the conduct amounted to sexual harassment, the law protects him or her from retaliation.

External Links

Links to external sites with additional information about this topic.

• EEOC Enforcement Guidance: Vicarious Employer Responsibility for Sexual Harassment
  

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posted by Neil Klingshirn  |  Aug 6, 2009 6:05 PM [EST]  |  applies to Ohio