Sexual Harassment Investigations
Another article by Ron Azzarello, one of many that we use for
training aids for our investigators.
Subj: Probative -- Sexual Harassment -- Tips
Date: 7/27/98 10:09:44 AM Pacific Daylight Time
From: ALLIANCE@IntNet.net (Ron Azzarello)
FYI --
Friday, June 26, 1998, the United States Supreme Court
decided two cases, Burlington Industries, Inc. v. Ellerth, (No. 97-569) and
Faragher v. City of Boca Raton, Florida, (No. 97-282) which changed the
landscape for sexual harassment cases brought under Title VII of the Civil
Rights Act of 1964. The court broadened the conditions under which suits can be
brought, and, a company can deflect sexual harassment charges with a two-pronged
affirmative defense.
Employees gained because they can file a harassment complaint
even if they do not suffer retaliation after resisting a supervisor's sexual
advances, and hold an employer liable for a supervisor's harassment even if top
management does not know about it. Employers also gained because they can
protect against sexual harassment charges if their company has a zeor-tolerance
policy that is widely observed, and win a case if the employee does not report
the offenses to a supervisor who is responsible under the company program.
>From these two cases, investigators should become familiar
specific elements:
1. Every employer MUST have an anti-harassment policy with a
complaint procedure.
2. Every employer MUST publicize its policy to all of its
employees and MUST train its supervisors and managers, advising them what
constitutes sexual harassment, what conduct is expected of them, and how to
handle sexual harassment claims.
3. Every claim of sexual harassment should be considered
serious. A prompt investigation should be made, and prompt remedial action
should be taken if necessary.
4. Careful records should be kept of sexual harassment
claims, investigations, and remedial action.
As a result of these cases, employers should adopt,
disseminate, and effectively enforce solid policies against sexual harassment.
Without such policies in place, an employer stands to forego an affirmative
defense to liability or damages for sexual harassment. These changes will alter
the investigative focus for both, plaintiff and defendant.
Several points about a company's policy against sexual
harassment influenced the Supreme Court's rulings, as critical for employers to
keep in mind, and therefore must be understood by investigators working these
type of cases. I believe the investigative focus, said another way, includes
looking for specific elements:
- Adopt a sexual harassment policy that includes at least
three items:
1.) Easy-to-understand illustrations of what constitutes
sexual harassment,
2.) A statement that the company does not tolerate such
conduct and will enforce its policy, and
3.) A description of the procedure to be uses in registering
complaints of sexual harassment.
- Develop a complaint procedure with built-in safeguards
against harassing managers and supervisors. Every policy against sexual
harassment should identify the persons to whom an employee should report a
complaint of sexual harassment. Under these recent decisions, the policy MUST
contain a mechanism for allowing an employee to bypass a harassing supervisor
when registering a complaint.
- Familiarize all personnel with the company's sexual
harassment policy and its complaint procedure. Simply adopting a policy against
sexual harassment is insufficient. Companies MUST ensure that such policies are
distributed to all employees in the company.
- Train managers and supervisors to recognize conduct that
might constitute sexual harassment. MUST ensure all managers and supervisors
know that the company takes reports of possible sexual harassment seriously and
as company policy, they MUST report every employee complaint of possible sexual
harassment to a proper company authority.
- Monitor (proactive audit?) the conduct of managers and
supervisors for compliance with the company's sexual harassment policy. A
company CANNOT allow managers and supervisors to operate without supervision and
is duty bound to monitor their conduct to ensure sexual harassment of
subordinates IS NOT occurring. Companies MUST promptly correct any sexually
harassing behavior that violates their sexual harassment policy.
http://www.law.cornell.edu/uscode/
http://www.whitehouse.gov/WH/html/judg.html
http://www.law.cornell.edu/supct/index.html
Ron Azzarello, licensed investigator C88-640
ALLIANCE Surveillance & Investigation A88-275
PO Drawer 1095, Dunedin, FL 34697-1095 USA
1-727 736-6775
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