Thursday, January 25, 2024

These 6 steps will help keep you out of sexual harassment hot water

A teenage, female restaurant employee bends over to pick something up and a male co-worker snaps a photo of her buttocks and then shares it with his coworkers. She reports the misconduct conduct to her manager and noted “that it made her feel uncomfortable.” The company investigates, and even though it does not find the photo on the co-workers, it still fires him six days later for myriad issues with his employment.

The complaining employee then sues for sexual harassment, alleging that the taking and sharing of the photo constituted a hostile work environment. The court disagreed: “Johnson alleges two isolated incidents—Shawn took a picture of her buttocks and showed it to her coworkers. Although Shawn’s conduct was rude and boorish, his actions fall well short of conduct so severe as to alter or change the terms of her working conditions.”

This case is great example of how the law operates as floor and not a ceiling. Even though the alleged misconduct did not rise to the level of a legally actionable hostile work environment, the employer nevertheless investigated and took corrective action.

Do you know the six key steps to take when an employee complains of hostile work environment? They are:

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

2.) Investigate the allegations, promptly and fully.

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. The accuser does not get to choose the remedy. 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.

6.) Never retaliate. Ever! This really should be point number one. It’s the easiest way to turn a defensible claim into an indefensible nightmare, and it will also chill others from coming forward with future harassment complaints or concerns.