Reports of sexual harassment in the workplace are all too common and have only seemed to increase. How an employer responds to alleged harassment or discrimination will greatly impact the employer’s potential liability and resulting in negative publicity. It is crucial to consider the steps that can be taken regarding addressing workplace allegations and handling any resulting litigation. Legal and policy considerations are key, however effective communication is equally essential. Keep in mind that each and every scenario is unique and therefore thoughtful and appropriate action must be taken when confronted with claims of sexual harassment.
Sexual harassment or discrimination complaints may cause devastating liability lawsuits, emphasizing the importance to deal with these claims in an appropriate manner. Not all proper responses will be intuitive and may require knowledge of complex laws and regulations.
Bringing in outside legal counsel experienced in handling such claims as soon as possible is strongly recommended to navigate these complex legal issues. The counsel can guide the employer to comply with legal requirements for the response as well as help determine whether an early resolution is possible or advisable. Their assistance can also help ensure that all communications are protected by the attorney-client privilege.
Always Remain Respectful
Many employees are concerned about bringing allegations regarding sexual harassment or discrimination to the forefront, as they may worry about consequences, effects the complaint will have on others in the workplace, or potentially losing their jobs. The employer should show respect and understanding of the complaining party. It is always possible that there was misbehavior or violations within company standards, and the complainant may be legitimate. If the employees feel the company is taking concerns seriously, there is a much better chance for internal resolution and therefore less likely to resort to litigation.
The company should promptly investigate all complaints in a serious regard to mitigate the issue and avoid litigation. Investigations should be conducted by trained experienced individuals who have the ability to be neutral and impartial. The investigator should create a plan to analyze the actions at issue with counsel.
First, the investigator should determine the appropriate scope of the investigation, as it will be dependent on allegations and must be reassessed if facts change. The investigator should also be someone who has good people skills and judgment. It is important that the investigator is well aware of the company policies or procedures regarding harassment.
Employee handbooks often include these procedures so it is always best to follow your own policies. It may be helpful to ask the complainant what they hope will happen as a result of the investigation. The company is not required to comply with unreasonable demands, but some requests, such as a transfer, may be an effective means to resolve the concerns.
Pre and Post Investigation Actions
A full investigation into sexual harassment may take time, and it may be appropriate for the employer to take immediate steps. Protective measures may include:
- Placing the alleged wrongdoer on paid or unpaid leave
- Allowing the complainant paid time off during the investigation
- Altering work assignments so that an alleged harasser does not work directly with or supervise the complainant
Follow an Anti-harassment Policy
Ideally, the company should already have a thorough anti-harassment policy in place. If it doesn’t, or if the policy lacks language appropriate to the company culture, the company should secure one or make adjustments to what they have.
A couple of components of a good policy are:
- Zero tolerance for any forms of harassment, discrimination, bullying, or violence in the workplace
- The definition of sexual and other types of harassment or discrimination
- The company’s policy to investigate claims
- Assurance that the employer will protect the confidentiality of complaints
- Strong prohibitions on any retaliatory conduct
- The disciplinary actions that may be taken upon the determination that the policy has been violated
- State and federal remedies available to the employee
Companies should never retaliate against a complaining employee or any witnesses even if the initial complaint proves to be unfounded. Retaliation claims tend to be even more of a complex case to defend.
Once a claim is made, it’s important for the company to put a “legal hold” in place, so relevant emails, memos, and other documents are preserved and not deleted or destroyed, in anticipation of potential litigation. Failure to protect these documents may lead to punishment from the court.
Your clients can greatly benefit from Employment Practices Liability Insurance (EPLI) to handle sexual misconduct lawsuits.
About World Wide Specialty Programs
For the last 50 years, World Wide Specialty Programs has dedicated itself to providing the optimal products and solutions for the staffing industry. As the only insurance firm to be an ASA commercial liability partner, we are committed to that partnership and committed to using our knowledge of the industry to provide staffing firms with the best possible coverage. For more information about Staffing Professional Liability Insurance or any other coverage, we have available to protect your staffing business, give us a call at (877) 256-0468 to speak with one of our representatives.