Effective Investigation of Sexual Harassment Claims

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Prompt, thorough and effective investigations are an integral part of an employer's prevention and correction of sexual and other forms of unlawful harassment in the workplace. Recent United States Supreme Court decisions have emphasized the importance of the employer's efforts to prevent sexually harassing behavior and promptly correct any such behavior which does occur.

These decisions establish that in sexual harassment job cases involving harassment by a supervisor where no tangible employment action is taken, the employer may avoid liability if it can prove as an affirmative defense that: (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the employee unreasonably failed to take advantage of the employer's anti-harassment policies and any preventive or corrective opportunities.

If the employer cannot establish that it took prompt and effective remedial action in responding to a harassment complaint, the employer may be unable to take advantage of the affirmative defense articulated under federal sexual harassment law.  Further, an employee may successfully argue that the employee's failure to invoke the company's sexual harassment policy was reasonable if the employee can establish that the company had a history of failing to respond to such complaints. This could also prevent the employer from proving the elements of the affirmative defense.

Under Hawaii state law, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a boss sexual harassment of a subordinate regardless of whether tangible action is taken. Not only must employers be able to establish the adequacy of their investigations in suits brought by the "victims," but they must also be able to establish the adequacy of their sexual harassment investigation in suits brought by alleged harassers.  Highlighting the potential threat posed by alleged harassers, in 1997, a jury awarded $26 million to a Miller Brewing Company executive who was fired after discussing a risque episode of the television show "Seinfeld" with a female co-worker who later complained to management.  Alleged harassers may assert claims for defamation, invasion of privacy and emotional distress.

Maintain an Effective Sexual Harassment Policy

Under federal law to be able to take advantage of the affirmative defense, an employer must first be able to prove that it exercised reasonable care to prevent and correct harassment in the workplace.  Recent sexual harassment court cases law has indicated that to satisfy this element, an employer must maintain a written policy on sexual harassment, disseminate it to employees and enforce it.  Training managers and employees will go a long way to show an employer's commitment to enforce its anti-harassment policy.  Of course, the training should explain the different forms of harassment prohibited by the policy, examples of sexual harassment, as well as the complaint in-take procedures.

If an employer does business with the City and County of Honolulu, it may be required to adopt specific harassment guidelines, including time deadlines for the investigation and determination of a complaint.

Identify Potential Harassment Issues That Require Investigation

The most obvious situation in which an employer's obligation to investigate cases of sexual harassment in the workplace involves a complaint by an employee. Often, however, employees mention bothersome conduct that may constitute prohibited harassment to their supervisors but request that the supervisors take no action or maintain confidentiality.  

In Hawaii, once a supervisor or manager is aware of prohibited harassment, the employer is deemed to have knowledge and will be liable to the harassment regardless of whether management was made aware of the situation.  In general, even if the employee requests that the employer take no action, an investigation should be conducted.  The employer should not defer to the employee's request for inaction or confidentiality.  The employee does not have adequate information to determine whether action should be taken.  For example, unbeknownst to the employee, the alleged harasser may have engaged in similar behavior in the past or presently may be engaging in even more egregious behavior toward other employees.  The prudent employer will undertake an investigation to determine the scope of the problem and independently assess whether any action is necessary.

If an employee refuses to cooperate with an investigation, at minimum the employer should document its attempts to conduct an investigation and the employee's refusal to provide necessary information.  Refresher training on the no-harassment policy may be warranted to that workgroup.

Even if no employee complains about harassment, the employer should undertake an investigation of harassment of which it has knowledge.  If a manager observes what appears to be unwanted sexual conduct directed at an employee in the workplace, the manager should investigate. Managers also should investigate if the person who complains is someone other than the employee who is allegedly being harassed.  Receipt of an anonymous letter complaining of harassment or vague complaints made by employees who refuse to identify any alleged harassers also may trigger the duty to investigate.  It is important that employers train their managers and supervisors to be proactive in this area of personnel law because of the potential liability for themselves and the company. Any questions from managers and supervisors about what may be prohibited harassment should be directed to human resources or senior management for determination.

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