An Employer's Playbook for Responding to an Allegation of Sexual Harassment

Posted by Jason Shinn on February 04, 2012

Chalk PlaysA meaningful analogy can be made between the this year's eventual Super Bowl winner and a company successfully responding to an allegation of sexual harassment.

Consider for example that according to research (WSJ subscription required) the most defining and critical plays of a professional football game come down to success on first down. More specifically, the most telling benchmark for determining the team that will ultimately be successful is first down efficiency.

In this regard, the New York Times reports that the Patriots have a slight edge on first down efficiency: 

The Patriots average 6.7 yards per play on first down, the Giants 6.2 yards per play, and much of the Giants’ production came from a handful of big plays.

Successfully Responding to an Allegation of Sexual Harassment

Similar to this first down football success factor, the most important factor for successfully responding to a sexual harassment allegation is how effective a company's response is when a sexual harassment claim is first lodged. This is because it is not uncommon that more attention will be given to the employer's initial action or inaction than is given to the alleged harassing conduct itself.

For this reason, the steps the employer takes pre-complaint to maintain a workplace free from harassment, and the steps it took in response to a complaint, can turn an otherwise manageable harassment complaint into the football equivalent of third and long. 

The following are a few of the most critical points that a company should consider at the outset of responding to an allegation of sexual harassment:  

  • Responding to the Complaint: A sexual harassment complaint will not always be neatly presented to an employer with the "who," "what," and "when" type of facts clearly identified. Instead, a sexual harassment complaint may appear in various forms, such as rumors, informally shared information, anonymous letters, calls to a company’s employee complaint hot line, or a direct in-person complaint. Another common fact-pattern are complaints that come to light during exit interviews with departing employees. For these reasons, before a complaint is received, employers should train managers and supervisors to respond to any information indicating possible inappropriate conduct. 
  • Selecting the investigator: The most important consideration in selecting the investigator is to insure that the investigation is credible and bias free. It is also imperative that high level insiders in the company do not have any influence over the investigator or the investigation. For this reason, using an outside, neutral investigator will almost always be preferable to having someone from inside the company investigate the sexual harassment allegation. A few other tactical considerations that should go into the assessment of an investigator:         
    • Knowledge of Employment Discrimination Law: The investigator should have a working knowledge of discrimination and harassment law, as well as experience in conducting investigations; 
    • Likely Court Room Presence: Employers should also consider whether the investigator will make a good witness at trial if there is future litigation concerning the complaint’s allegations. This is because the investigator will likely be a key witness for the employer and essential for establishing the employer's defense. 
  • The Investigation should be viewed as "Exhibit A" in future litigation: It should be assumed that the employer’s investigation will be used as a defense in future litigation. It is, therefore, important for the investigator to be mindful of this fact before committing anything to writing during the investigation: A wrongly or poorly chosen word or sentence, an omission, or an inaccurate description by the investigator may result in significant legal issues down the road.

Conclusion

While the focus of this Super Bowl will likely be on the quarterback play of Tom Brady and Eli Manning, it is the battle for first down efficiency that will often determine a team's success for failure.

Similarly, a company's success or failure in responding to a sexual harassment allegation against one of its executives, managers, or supervisors will often turn on its initial response and not on the actual harassment. For this reason, the company's investigation must be beyond reproach with employers committed to taking appropriate steps in fulfilling their legal obligation under state and federal discrimination laws to conduct a prompt, meaningful, and thorough investigation of the circumstances and, if necessary, take appropriate remedial action. 

For more information and additional recommendations on how to conduct a successful sexual harassment investigation, contact Jason Shinn. 

Presidential Politics and Sex - A Reminder for Employers on Preventing Sexual Harassment

Posted by Jason Shinn on October 31, 2011

Sexual harassment.jpgWhat's a Presidential campaign without sex? Or at least allegations of sexual harassment?

In this regard, Politico reported that Herman Cain, a Republican presidential hopeful, engaged in conduct that resulted in at least two out-of-court settlements with women who complained they were subjected to inappropriate conduct by Mr. Cain. These settlements occurred while Mr. Cain was heading up the National Restaurant Association.

When Can an Employer Be Liable for Sexual Harassment by a Manager or Supervisor? 

Setting aside politics, Mr. Cain's reported indiscretions are a good reminder for when an employer may be liable for the sexual harassment of a supervisor. Generally, such liability occurs in two situations: 

First, an employer is liable for quid pro quo harassment by its supervisors. Quid pro quo harassment exists when a supervisor makes a subordinate's job security or benefits conditioned on acceptance of the supervisor's sexual overtures and then penalizes the subordinate for refusing them.     

Second, an employer may also be liable for a supervisor's conduct that creates a sexually hostile work environment for a subordinate. This sort of sexual harassment, however, provides an employer with an affirmative defense and thereby avoid liability if the employer proves the following: 

  1. The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 
  2. The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. 

See the landmark U.S. Supreme Court decisions Burlington Indus v Ellerth, 524 US 742, 790 (1998) and Faragher v City of Boca Raton, 524 US 775 (1998). 

What Steps Should Employers Take to Limit Their Exposure to Sexual Harassment Liability?

The first line of defense in reducing an employer's exposure to sexual harassment liability is having in place a well-publicized and effective sexual harassment policy. This policy should be developed with experienced legal counsel and should include the following topics: 

  • Statement that the employer will not tolerate sexual harassment;
  • A definition of prohibited conduct;
  • A direction that employees who feel they have been sexually harassed are to make a complaint to specific individuals. The policy, however, should also include several alternative avenues for making a sexual harassment complaints;
  • The employer's commitment to investigating sexual harassment complaints;
  • The employer's commitment to maintaining confidentiality of the reporting employee to the extent possible;
  • A statement that that sexual harassers will be subject to disciplinary action up to and including discharge; and
  • The employer's commitment that there will be no retaliation for making a complaint or assisting in a sexual harassment investigation.

The second line of defense is educating managers at all levels so they have a solid understanding of:

  • What constitutes unlawful discrimination, including sexual harassment;
  • What decisions should be cleared with the human resources department or higher-level management; and 
  • What complaints, including "rumors" that should be reported for appropriate action. This is especially important where the employer’s prompt investigation and remediation may help to avoid or substantially limit the employer's exposure to discrimination claims.

For questions on preventing sexual harassment or for more information on employer liability for sexual harassment, please contact Jason Shinn. 

Eliminating Mistakes in Sexual Harassment Investigations

Posted by Jason Shinn on September 23, 2011

Football PenaltyGoing into last weekend I was overcome with sports euphoria with U of M, the Spartans, and the Lions being undefeated and the Tigers on the verge of winning their Division. 

Unfortunately that winning streak did not continue. But success by 3 out of 4 of my Michigan teams wasn't too bad (thanks Sparty for dropping the ball).

The Spartan's lost, however, provides a good reminder that mistakes simply kill success. Consider for example that in their loss the Spartans had two costly turnovers and 12 penalties, including several offensive holding penalties that backed up critical drives.    

For employers mistakes in responding to sexual harassment claims may be costly and jeopardize successfully defending a claim that is later filed. In this regard, the following are several areas that deserve focused attention, preferably with the assistance of experienced legal counsel: 

  • It is critical for employers to make sure managers and supervisors understand what to do if they receive a complaint or experience harassment and that the appropriate action is taken in a timely manner;
  • Make sure that employees understand their options and obligations for reporting harassment and that both are documented. This is because under Burlington Indus v Ellerth, 524 US 742 (1998), and Faragher v City of Boca Raton, 524 US 775 (1998), the second element of an employer's affirmative defense requires an employer to show that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Ellerth, 524 US at 765. 
  • The investigation should identify likely sources of relevant documents and digital information that may provide objective evidence of harassment. This point needs to be carefully considered because a party has an obligation to suspend any automatic deletion procedures and to otherwise preserve information once litigation is commenced or a party reasonably anticipates litigation, i.e., possibly investigating misconduct. In fact, e-discovery sanctions commonly relate to a party's failure to take appropriate preservation efforts prior to actual litigation being filed. To minimize later e-discovery costs, legal counsel should collaborate with IT professionals to implement appropriate litigation hold procedures in order to properly preserve relevant information; 
  • Information during the investigation phase should only be disclosed on a need to know basis; and 
  • It is important to remain objective. Every investigation should start without any preconceived notions of guilt or innocence on the part of any particular party.  

This list is certainly not an exhaustive playbook. But eliminating mistakes in these critical areas will go a long way towards improving the overall sexual harassment investigation process. 

The Dangers of Looking the Other Way: Dominique Strauss-Kahn and Sexual Harassment

Posted by Jason Shinn on August 24, 2011

Stop Sexual Harassment.jpgWhile the criminal charges against Dominique Strauss-Kahn have now been dismissed, his conduct and his employer's response provides a textbook full of examples of how not to respond to sexual harassment in the workplace.

Sexual Harassment Overview

Under Title VII of the Civil Rights Act, there are two basic forms of actionable sexual harassment: 

Quid pro quo - conditioning employment or some aspect of employment on a favorable response to sexual advances in the workplace); and 
Hostile environment harassment - sexual comments and conduct so pervasive that the workplace becomes intimidating, hostile, or offensive). Both forms of sexual harassment require unwelcome conduct of a sexual nature.
An employer's liability for the sexual harassment of a supervisor turns in part on whether the harassment claim is a quid pro quo or hostile work environment claim. 
Under U.S. Supreme Court law (Faragher v City of Boca Raton, 524 US 775 (1998) and Burlington Indus v Ellerth, 524 US 742 (1998)) where an employee proves actionable sexual harassment involving a tangible employment action by a supervisor, whether the harassment was quid pro quo or hostile environment, the employer is strictly liable even if it knew nothing about the harassment. 
In the absence of a tangible employment action, an employer will still be liable for a hostile work environment created by its supervisors unless it successfully establishes as an affirmative defense that:
 
The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 
The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm. . . ."
Thus, an employer must initially establish that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior. 
Today, most employers have established and distributed policies prohibiting sexual harassment and how such prohibitions will be enforced. Such steps will often constitute an adequate general preventive measure. 
The second part of the affirmative defense requires an employer to show "that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." 
Brantley v. Cinergy Corp., 2007 U.S. Dist. LEXIS 62904 (S.D. Ohio Aug. 27, 2007) (Fact issues as to whether supervisors failed to adequately address certain incidents brought to their attention and that employees were consequently discouraged from reporting other incidents).
However, the "mere existence of a grievance procedure and a policy against discrimination, coupled with a respondent's failure to invoke that procedure,"  [*68] will not necessarily insulate an employer from Title VII liability, especially where the facts suggest the procedure and policy were not reasonably "calculated to encourage victims of harassment to come forward." Meritor Savings Bank v. Vinson, 477 U.S. 57, 72-73, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986).
Of course, an employee may have a reasonable explanation for why he or she did not complain about the alleged harassment. To avoid summary disposition, however, an employee will have to articulate specific facts that support the reason for not complaining. n25 Thus far, simply alleging, in conclusory fashion, that he or she did not complain because of fear of retaliation has been ineffective in avoiding summary judgment, especially when the policy stated that "reprisals against the reporting employee would not be tolerated." n26
At a minimum, an employer must establish and distribute an anti-harassment policy, with alternate avenues of relief, to its employees. The employer also should have employees sign a receipt for the policy to prevent an employee from subsequently claiming that he or she never received the policy. Simply distributing the policy is  [*436]  probably not enough and the employer should provide supervisors and managers with sexual harassment training or, at the very least, train them regarding the employer's policy.
If there is a complaint, an employer should investigate and take prompt remedial action to end the alleged harassment. At best, such action may be a defense to any claim and, at worst, it may limit the employer's liability.
When attorneys assess and investigate a sexual harassment claim, the following should be the focus: Did the employer have a sexual harassment policy? If so, did the employer distribute and/or post it? Can it be proved that the complainant knew of the policy? Did the policy provide that complaints could be brought to someone other than the complainant's supervisor? Did the employee complain about the alleged harassment? If not, or if a significant delay occurred between the alleged harassment and the employee's complaint, did the employee have a reasonable explanation for inaction? Did the employer make a full investigation and then take prompt remedial measures? Had other employees complained about sexual harassment? If so, how did management handle these complaints?
  • Quid pro quo harassment involves conditioning employment or some aspect of employment on a favorable response to sexual advances made in the workplace; and
  • Hostile environment harassment consist of sexual comments and conduct so pervasive that the workplace becomes intimidating, hostile, or offensive. 

Both forms of sexual harassment require unwelcome conduct of a sexual nature. An employer's liability for the sexual harassment of a supervisor turns in part on whether the harassment claim is a quid pro quo or hostile work environment claim. 

This is because under U.S. Supreme Court law (Faragher v City of Boca Raton, 524 US 775 (1998) and Burlington Indus v Ellerth, 524 US 742 (1998)) where an employee proves actionable sexual harassment involving a tangible employment action by a supervisor, whether the harassment was quid pro quo or hostile environment, the employer is strictly liable even if it knew nothing about the harassment.

In the absence of a tangible employment action, an employer will still be liable for a hostile work environment created by its supervisors unless it successfully establishes as an affirmative defense that:

  • The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
  • The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm. . . ."

This framework, however, would not likely be available to the IMF based on Mr. Strauss-Kahn's conduct and the IMF's response. 

Why Employers Cannot Afford to Look the Other Way

Most employers have written policies prohibiting sexual harassment, clear explanations for how such prohibitions will be enforced, and several ways to report concerns about sexual harassment. Such steps will often constitute an adequate general preventive measure by employers that will meet the first prong of the defense. 

In contrast, according to Bloomberg Businessweek's profile of Mr. Strauss-Kahn, the IMF appeared to simply look the other way when it came to Mr. Strauss-Kahn's improper conduct:     

As head of the IMF he was able to competently - some say brilliantly - steer the fund through a global economic crisis, all the while conducting himself with women in a manner that even his colleagues found unseemly, with little consequence. 

Even more troubling is that a member of the IMF's HR department actually warned other managers "not to leave Strauss-Kahn alone in a room with any women."

So even if it is assumed that the affirmative defense was viable, i.e., Mr. Strauss-Kahn took no tangible employment action against a subordinate, the IMF would still have difficulties in showing "that prospective plaintiff employees unreasonably failed to take advantage of the IMF's preventive or corrective opportunities it provided to avoid harm.

This is because in light of the IMF's apparent indifference, an employee could easily argue that IMF employees were essentially discouraged from reporting incidents of sexual harassment involving Mr. Strauss-Kahn. In fact, one such employee who claimed to have acquiesced to Mr. Strauss-Kahn's pursuits described her situation as follows:  

I believe that Mr. Strauss-Kahn abused his position in the manner in which he got to me ... I felt that I was ‘damned if I did and damned if I didn't ... But it is, in my view, incontestable that Mr. Strauss-Kahn made use of his position to obtain access to me.”

The Take Away

There are a number of important components to an employer's anti-harassment policy that should be developed with experienced legal counsel. A cornerstone of that policy, however, must include an employer's willingness to investigate and take prompt remedial action to end the alleged harassment - no matter the brilliance or status of the alleged harasser.

The Too Ugly to Sexually Harass Defense?

Posted by Jason Shinn on August 19, 2011

Man in Drag.jpgUnder existing law, employers may avoid liability for hostile environment sexual harassment by supervisors under certain circumstances. But a "trailblazing" company may be challenging the status quo with a "too ugly to sexually harass" defense.

Current Hostile Sexual Harassment Defense Law

To avoid liability for sexual harassment for hostile environment harassment by supervisors under Title VII, the U.S. Supreme Court requires the employer to show (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the plaintiff unreasonably failed to take advantage of corrective or preventive opportunities offered by the employer or to otherwise avoid harm. Burlington Indus v Ellerth, 524 US at 765; Faragher v City of Boca Raton, 524 US at 807.

To prove the first element, proof of the existence of an effective anti-harassment policy and grievance mechanism will ordinarily suffice under the Supreme Court's Burlington decision. To prove the second element, proof that the plaintiff unreasonably failed to use the procedure will ordinarily suffice. Ellerth, 524 US at 765; Faragher, 524 US at 807–808.

Thus, Title VII requires reasonable prevention and reasonable remedial actions after the harassment has occurred.

Or ..... There’s the “too ugly to harass” defense?

Employers may have another defense to add to their sexual harassment defense tool box if a "trailblazing" New York City company appears to be pushing for the "too ugly to harass" defense.

Specifically, the Current Employment Law Blog by Timothy Eavenson reported that a former real estate company employee in New York City claimed she was sexually harassed by at least 7 different male employees.

In response, the owner of the company defended the company by pointing out that "no one would want to touch the former employee, because she’s too ugly." (Quoting the Current Employment Law Blog). 

The Take-Away

Employers should not anticipate the U.S. Supreme Court (or any court for that matter) expanding current sexual harassment law to include the "too ugly to harass" defense. 

Instead employers should focus on having clear policy statements prohibiting discrimination in employment, defining prohibited discrimination, and providing multiple avenues for complaints of perceived discrimination. Such steps can go a long way toward helping an employer avoid liability for employment discrimination.