Sexual Harassment Claims: What Companies Can Do: Michelle Kaemmerling Offers Commentary for Arkansas Business

Sexual Harassment Claims: What Companies Can Do: Michelle Kaemmerling Offers Commentary for Arkansas Business

This article originally appeared online at Arkansas Business on December 8, 2017. 

Over the last couple of months, the news has been filled with reports of alleged — and often admitted — harassment and/or abuse. For every harasser, one or more employers also appeared in news reports, usually in a negative light because the complaints were numerous and spanned decades.

Some common themes in these accounts are instructive for employers:

  • In many of these reports, the misconduct in question is described as an “open secret.” (Such an allegation, if substantiated, can be fatal in litigation.)  
  • Companies may be more tolerant of bad behavior when the harasser is ultra-successful or powerful.
  • Serial harassers tend to repeat a specific pattern of conduct.
  • When complaints are made and substantiated but no meaningful corrective action is taken, those with knowledge are complicit in subsequent misconduct.

There is, of course, a spectrum of misconduct.

Allegations of workplace harassment run the gamut: sexual assault, inappropriate physical conduct, sexual propositioning, sexist comments, lewd/boorish jokes, inadvertent contact, innocent/misconstrued comments.  

Not every violation of law or policy should be disciplined the same, but all allegations of harassment must be promptly and thoroughly investigated.

In addition to being a best practice, conducting such an investigation usually provides employers with a defense in harassment lawsuits.

Some complaints are completely unsubstantiated by investigation. But when a complaint is ignored or summarily dismissed, the employer has no investigation to rely on when an Equal Employment Opportunity Commission charge or lawsuit is filed. Keep in mind that even when a complaint is not substantiated, there can be no retaliation against an employee who makes a good faith complaint.  

The legal standard for actionable sexual harassment is extremely high. These types of claims fall into two categories: quid pro quo harassment, and hostile work environment harassment.

Quid pro quo harassment occurs when a supervisor or manager conditions benefits of employment on sexual favors or, conversely, punishes an employee for refusing sexual advances.  

Hostile work environment harassment is unwelcome conduct by anyone (including a manager, co-worker or even a client/customer) of a sexual nature or based on gender that is severe and pervasive.

Many complaints concern conduct that is not unlawful but violates company policies and workplace standards.  

Employers are wise to promptly and thoroughly investigate all claims of harassment or inappropriate conduct. The investigation and its findings should be documented. Emails, text messages and voice messages may resolve any question about who is telling the truth.  

When you have no witnesses and no documentary or video evidence, the investigation findings will come down to a credibility assessment. This is the same assessment a jury will make if the claim turns into a lawsuit, so it is worth noting that just because an allegation is disputed, that does not mean that no disciplinary action can be taken. Sometimes the complaint is more credible than the denial. If there are multiple allegations of similar conduct, that should also be given weight in the credibility assessment.  

It is essential to have a written anti-harassment policy that explains the procedure for reporting a complaint. Training also plays a key role, especially for managers who are responsible for enforcing the company’s policies. Additionally, if you do not already have such a policy, consider prohibiting relationships between a supervisor and anyone in the supervisor’s chain of command.

A common theme in cases arising out of such relationships is that the subordinate felt he or she had no real choice due to the supervisor’s power, so the relationship was never truly consensual. Also remember that sexual harassment in the workplace is unlawful regardless of the gender of the harasser and the victim. For example, a female can sexually harass a male or a female coworker.

On a final note, research shows that increasing representation of women in management has positive effects on workplace culture, including more effective enforcement of harassment policies. There is no question that women remain underrepresented in management. An article arising from the partnership between SHRM and Harvard Business Review notes that there are more CEOs named John leading big companies than there are female CEOs.  

A more recent SHRM/Harvard Business Review article discusses studies showing that harassment occurs less frequently in industries where women are well-represented in key jobs, including management.

And, if that isn’t reason enough, gender-diversity in leadership is also good for business. In 2015, McKinsey & Company reported that gender-diverse companies are 15 percent more likely to outperform.

Promote women, reduce harassment, make more money — sounds like a pretty good New Year’s resolution list.