August 19, 2021
With the recent resignation of New York Governor Andrew Cuomo, we are reminded that, more than ever, it is legally imperative that an employer creates and properly enforces a comprehensive written sexual harassment policy. All employers should already have a clearly written policy conspicuously posted throughout the workplace and, in particular, in your employee handbook. The policy itself should be very clear that sexual harassment will not be tolerated, it will be thoroughly investigated and will be punished. But that is only the first step. An employer should also:
Promptly and thoroughly investigate all complaints
The company should promptly investigate all complaints. Failure to treat a complaint seriously can significantly increase the problem and the potential liability. Investigations should be conducted by persons with training and experience, and the investigator should always:
- Thoroughly review and follow the company’s policies or procedures in place for dealing with harassment or discrimination.
- Assure the complaining party at the outset that the complaint will be treated seriously, and that any concerns about retaliation should be brought to the investigator’s attention immediately.
- Instruct the accused not to contact the complainant regarding the complaint, and not to engage in any retaliatory conduct.
Immediate action sends a message not only to the complaining employee but also to others in the workplace.
Treat the complaining party as you would want to be treated
Employees often find it very difficult to make allegations about sexual harassment or discrimination. The employer should always be respectful and show concern to the complaining party.
Immediately take protective steps
A full investigation into sexual harassment or discrimination often takes time. Meanwhile, the employer may need to:
- Place the alleged wrongdoer on paid or unpaid leave, pending the outcome of the investigation
- Alter work assignments so that an alleged harasser does not work directly with or supervise the complainant
- Ensure that all supervisors understand that retaliation will not be allowed.
If the company determines that a policy was violated and inappropriate conduct occurred, prompt and appropriate disciplinary action must follow. Depending on the severity of the situation, discipline may include a warning, counseling, suspension, or immediate firing of the wrongdoer.
Never retaliate
The company should ensure that it never retaliates against a complaining employee or witness, even if the initial complaint is not proven to be true. Retaliation claims are often considerably more difficult to defend against than the original harassment or discrimination allegations. Retaliation can take many forms including demotion, transfer to a less desirable location, change of shift hours or work area, isolating the employee, giving an unwarranted performance evaluation or making the employee’s work more difficult.
Preserve documents including texts and emails
Once a claim is made, it is very important for the company to preserve all relevant emails, memos, and other documents in anticipation of potential litigation. Failure to protect these documents can lead to sanctions from the court.
Be sure to file your claim to your insurance company
Many employers have employment practices liability insurance that may cover sexual harassment or discrimination claims. It is very important that the insurer be properly and quickly notified of a claim or else the employer runs the risk of losing insurance coverage.
If you have any questions regarding this or any other matter, please contact the attorneys at Warrick & Boyn, LLP.
If you have questions regarding this or any other matter, please contact the attorneys at Warrick & Boyn, LLP. Contact us today.