Wednesday, April 26, 2023

Your anti-harassment obligations are 24/7/365

"I did not know that a workplace policy could be enforced when you're not at work."

Those are the words of former Tennessee Representative Scotty Campbell, spoken to a reporter a mere six hours before he resigned his seat in State General Assembly after a bipartisan ethics subcommittee concluded that he had sexually harassed two female  interns. 

For all of the Scotty Campbells in the world, let's make this very, very clear — an employer's workplace harassment obligations are not tied to a time clock. An employer has the same obligations whether the harassment takes place in the workplace during working hours, in the break room, at the bar during happy hour, via text message or social media, in a grocery store aisle, or in outer space.

Those obligations are:

1.) Separate the victim from the alleged harasser. I usually recommend sending the alleged harasser home until the investigation (see step 3) is complete.

2.) Investigate the allegations, promptly and fully. If you're not qualified to conduct this investigation yourself, there are plenty of qualified attorneys and other consultants who can run the investigation for you. One word of caution about hiring an attorney as your investigator — if the harassment complaint turns into litigation, the investigator will likely become a key witness, which would disqualify that attorney from representing you as litigation counsel. In other words, don't hire your employment litigator to serve as your harassment investigator, unless you're ready to hire a new employment litigator for that case.

3.) Evaluate the evidence and make a reasoned conclusion as to what happened. Your evaluation should be legally protected as long as it's your honest belief based on a reasonably thorough investigation.

4.) Correct the harassment with prompt and effective remedial steps, if necessary. The standard for the corrective action is reasonably effective; as long as it's reasonably calculated to stop future harassment from occurring, then you've met your legal obligation. It could be anything from a warning, to a suspension, to termination. It will depend on the severity of the harassment and if it's a first offense versus a repeat offense, both of which will require an escalated response.

5.) Retrain all employees about your anti-harassment policy to help prevent future harassment.

Just because the alleged harassment didn't happen "at work" doesn't mean you get to ignore it. In fact, if you do you've just bought yourself a very expensive (and probably) very indefensible lawsuit.