One of my female employees left a handwritten note on my chair alleging sexual harassment by a male coworker. The allegations are lurid and serious. I know the accuser to be an honest, trustworthy employee. I feel like I need to take action ASAP, but am not sure where to start. What’s next?
Signed, Confused supervisor
Despite widespread attention in the media, advances in awareness and employee education, sexual harassment remains a very real problem in many organizations. There are two types of unlawful harassment; quid pro quo and hostile work environment. What both of these have in common is that they involve unwanted or unwelcomed behavior. They are, however, very different in terms of how they are manifested in a work environment. Quid pro quo sexual harassment, which has garnered most of the media’s attention, is any form of sexual harassment involving an exchange of sexual activities for a favor, benefit or prevention of a threat. On the other hand, hostile work environment sexual harassment is any form of behavior, usually repetitive, that creates a distressful, emotionally uncomfortable or intimidating work environment.
Both quid pro quo and hostile work environment sexual harassment involve potentially damaging, and even devastating, behavioral and emotional impact to victims. In addition to the human factor, when not dealt with in a timely and effective manner in a workplace setting, sexual harassment can create potentially significant financial liability for employers, as well as brand tarnishing and collateral issues related to employee attraction and retention.
Claims – Lower. Damages – Higher.
Although the past two years have seen fewer cases of harassment reported, as tracked by the Equal Employment Opportunity Commission (EEOC), there is evidence that damage awards on average are trending upward. The #MeToo movement is thought to have played a part in this trend, with greater awareness of the impact of harassment in society and potentially more empathetic juries. Perceived public pro-victim sentiment may be contributing to earlier and/or higher settlement awards as well.
In 2022 alone there were several six figure-plus harassment suits decided or settled, including one against a McDonald’s supervisor resulting in criminal culpability of the supervisor, and a damage award of more than $1.1 million. Other judgments and settlements resulted in damage awards well in excess of $100,000, and in one case filed against Activision Blizzard, a court-approved settlement resulted in an $18 million settlement fund established for the company’s harassment victims starting in 2016.
Statistics show that, on average, harassment claims and lawsuits settle for around $50,000. Categories may range from back and front pay, attorney’s fees, court costs and compensatory (emotional distress) and punitive damages. Although, as noted above, employer liability can well-exceed this dollar figure. It is important to mention that there are federal caps on compensatory and punitive damages in sex discrimination and sexual harassment cases based on employer size; $50,000 for employers with 15 to 100 employees, $300,000 for employers with more than 500 employees.
Responding to a Sexual Harassment Complaint
When it comes to understanding how to respond to a sexual harassment complaint, our confused supervisor is not alone. According to a 2019 study conducted by PelotonRPM, when managers and leaders were approached by an employee with a harassment, bias, discrimination or bullying complaint, 30% did not detail specific next steps or explain or mention a potential investigation. 56% did not explain that their company has an anti-harassment/anti-discrimination policy and 41% did not ask questions, repeat facts or clarify details.
In our sample situation, the supervisor has received a complaint from the alleged victim, who has gone on the record in writing to escalate her ordeal. This is significant given that many employees who are subjected to some form of harassment are reluctant to step forward. And when they do, chances are that what they are alleging to have occurred, may have happened before and gone unreported. According to the EEOC, it is estimated that anywhere from 87% to 94% of people who experience workplace harassment never file a formal complaint, and 75% never complained to their employers. Reasons range from fearing retaliation to thinking that nothing would be done about it to feeling that they wouldn’t be believed.
The point that harassment reporting, or lack thereof is an issue, cannot be emphasized enough. Another potential reason for this trend is that often employees don’t understand that what they are experiencing is unlawful sexual harassment. They may not understand their rights or may not have ever been provided with and/or briefed on their employer’s anti-harassment policy. If nothing else, employers owe their employees a guarantee of a safe working environment, free of discrimination and harassment. Regular harassment prevention training is a must for employers, and may have a significant impact on harassed employees’ willingness to step forward.
Duty to Act
Sometimes, out of fear, or political and other organizational concerns, when sexual harassment reports are made, they’ll start out as a confidential conversation with either a supervisor or someone they know and trust in their organization, accompanied by a plea to not do anything. In my experience, such employees typically explain that they are just venting, needing someone else to know. Recipients of harassment concerns or complaints are put in a position to take action on some level, depending upon the circumstances. It’s important to emphasize that agreeing to keep a harassment allegation between yourself and the alleged victim should not be an option.
Anyone in a people leadership capacity needs to be aware of their duty and obligation to investigate allegations of harassment, and address proven harassment in their workplace. Failure to do so can result in potentially significant liability, not to mention the emotional distress that can be experienced by unsupported victims. There are several laws obligating employers to investigate harassment and other complaints in a timely manner. In addition, to ensure that illegal harassment and other unlawful behaviors cease immediately, corrective action appropriate under the circumstances is required by those laws to be taken by the employer without delay.
Responsiveness to complaints and timely investigations ensure more accuracy in the process, and may also enhance employees’ perception of their employer’s commitment to integrity in the workplace. Prompt and thorough investigations may also prevent internal problems from becoming more widespread. While it’s true that investigations can be time-consuming and challenging to navigate, conducting them properly can make all the difference between a fair outcome and litigation.
Initial Interview Tips
- Stop the interview before it starts, if necessary. If, as mentioned above, your employee making the sexual harassment accusation begins the conversation by stating that they don’t want you to do anything, and that they are simply making you aware, consider stopping or pausing the interview. It’s very important from the start to inform such an employee of your obligation to follow up on complaints of sexual harassment. Advising your employee that if you are to proceed with the conversation, they must understand the next steps, including an investigation and conversation with the alleged harasser.
- Remain professional, and level-set your personal feelings. It’s important to remember, particularly in a small to mid-sized organization, that the person in front of you expressing concern or lodging a complaint involving sexual harassment is probably someone you know, and with whom you may even have had a long working relationship. Your tendency may be to immediately side with the alleged victim in an effort to demonstrate support, and offer overly comforting sentiments and reassurances. On the other hand, you may also have a bias against the alleged victim, and project doubt and/or disbelief. Either way, your role as the audience of a sexual harassment complainant, is to remain professional and objective, with an empathetic ear, reassuring the alleged victim of the company’s obligation to investigate and address any unlawful harassment uncovered in the investigation.
- Promise confidentiality, not anonymity. Reassuring the alleged victim that the company will keep their complaint as confidential as possible is appropriate. However going overboard and indicating that their identity will not be revealed is not advisable. And it’s not practical where there’s a real commitment to uncovering all available facts in the investigation. The who, what, where, when questions that need to be asked will almost certainly involve witnesses, and an interview with the alleged harasser.
- Listen carefully and begin the documentation process. Accusers may feel uncomfortable, and may even start to clam up if you take notes or open your laptop and start typing. It is important to be aware of this. Depending on how nervous you perceive the employee to be, as a courtesy, you may want to explain the importance of capturing the conversation accurately and the need for documenting what they are reporting. Ultimately, whether or not you decide to take notes, listening carefully and probing for additional information is critical in an initial meeting. Both from an accuracy standpoint as well as demonstrating genuine concern to the alleged victim.
- Be careful of what you promise. It’s only natural that an alleged victim of sexual harassment will have concerns about what happens next and when to expect resolution. They may even be under the impression that their alleged harasser will be fired immediately. It’s important to level-set expectations by explaining that the investigative process can be time-consuming, and that to ensure fairness and objectivity, no outcome will occur without a careful assessment of all of the available facts.
- Review your anti-harassment and non-retaliation policy. Making sure that the alleged victim is aware of their rights and the company’s obligations under your anti-harassment policy is very important at this stage. Sharing documented policy guidelines demonstrates a commitment to adhering to your policy, and should provide reassurance to the alleged victim that action will be taken. As important, if not more so, is ensuring that the alleged victim understands the company’s zero tolerance for unlawful retaliation. It’s one of the biggest blockers to employees stepping forward in sexual harassment cases, and can’t be overly emphasized in giving employees confidence that they can focus on their job without fear of retribution and negative impact to their employment.
There are many other aspects of investigating and resolving sexual harassment complaints that need to be considered, including determining how the investigation will proceed, and who you will select as the appropriate person to conduct the investigation. Not to mention consideration of getting a third party, such as legal counsel involved. The above is intended to highlight the issue and prevalence of sexual harassment and factors that may be driving some of the dynamics around sexual harassment in the workplace. It is not intended as a comprehensive guide to investigating and resolving sexual harassment complaints.
Managing the many responsibilities that fall to human resources coupled with the challenges presented by the current workplace environment can be difficult. The HR Consulting Practice at Univest Insurance provides clients with a broad range of HR compliance, operational and payroll services. To learn more about how we can support your HR team, contact us at 267.646.4467or email@example.com.
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