By: Barry Dorans

You run a business and receive a report from an employee of sexual harassment/hostile work environment, how do you respond?

First, while many areas of the law are very complex and it is easy to get punished for doing the right thing, this area is easier than most. The vast majority of employers want an environment where each employee feels safe to come to work and is not worried about being harassed, receiving lewd comments about their looks, or being subjected to offensive language or conduct. At the same time, employers do not want employees to think that they are subject to being fired at a moment’s notice when there is an unsubstantiated complaint. To balance both of these goals, an employer needs to follow the golden rule, treat their employees as they would like to be treated.

First, Employers should have a procedure that encourages employees to bring complaints to management. It is critical that employees are aware that they will not be retaliated against and that they have more than one avenue to file a complaint. Second, once an employee makes a complaint, the employer should investigate the complaint and interview witnesses. At that point, it may be helpful to consult with counsel to determine the exact nature of the investigation, who should be interviewed and what questions should be asked. Once the employer has finished talking to the employee who has complained, as well as each of the witnesses and reviewed any documents, it is important to give the other employee an opportunity to provide their side of the story. Things are not always as black and white as they might seem on the initial report. 

After completing the investigation and getting input from all sides, the employer then needs to decide what to do. If it finds that the complaint is unfounded, the employer does not need to take any action against the alleged bad actor. On the other hand, if the employer finds that the complaint is founded, it does need to take some action which is designed to prevent that bad actor from misbehaving in the future. While the news these days is filled with immediate termination of employees, that is not always the best response and there are times when a lesser punishment makes more sense, so long as the person who violated the policy comes into compliance and sins no more and the other employees believe they have a safe place to work.

The final factor to consider is if the bad actor misbehaves in the future and someone says that the employer did not act responsibly to try and prevent that action, how will the employer respond? The employer is not required to ensure the safety of its employees, but it is required to take reasonable steps to prevent future occurrences. Again, many areas of the law are filled with pitfalls, and employers regularly are required to pay a penalty for trying to do the right thing. In this area of the law, however, common sense and the application of the golden rule should get you started down the right path.