Preventing and addressing sexual harassment today

By now, practitioners are aware that private companies and public entities are legally and morally obligated to take measures to prevent sex discrimination and sexual harassment and to respond to complaints in the workplace. These basic requirements are again subject to increased scrutiny in light of the national conversation on the topic of harassment and assault. While the law provides limits on the legal filing of complaints against employers, the issue of responding to a new internal complaint about behaviors from years past remains.

An employer’s responsibilities regarding workplace harassment can be summarized in a timeline. The bad behavior(s) committed by an employee against another would be the mid-point of the timeline. Although the employer most likely did not permit or condone the conduct, the employer will be measured on what was done prior to the behavior and what was done after. In order to avoid legal liability for harassment perpetrated by a supervisor, an employer must show that it took steps to prevent the harassment.1 One of the primary goals of protection from discrimination is to prevent harm.2 Employers must take reasonable steps to avoid and prevent harm and these responsibilities increase as the potential level of harm increases.

For example, a payroll specialist who works in a prison around potentially violent inmates is entitled to more vigilant efforts by the prison to prevent harm. At a prison in Wisconsin, a clerk complained to the warden and to the director of human resources that an inmate performing janitorial work was alone with her in the office and she believed his actions were suspicious. Eight days after she complained, the inmate had not been removed from his duties, actions were not implemented to protect her from harm, and as a result she was assaulted.3

Whether or not employees are exposed to supervisors, co-workers, vendors or customers who may physically endanger others, employers must take actions to prevent harassment and assault, which should include:

• Maintaining a policy that prohibits harassment, which must be communicated to employees;

• Conducting training for all employees;

• Responding promptly and thoroughly to complaints, and

• Taking action when warranted.

Harassment prevention training is obviously one of the tools used most often by employers, but the effects of repeated training may be limited. Motivating employees to behave appropriately is more complicated than just providing yearly training. Employees need to see that complaints are taken seriously and that retaliation is not tolerated. To do otherwise sends a message that complainants will either be dismissed, or worse, that they may incur penalties for having complained.

Taking action is critical. An appropriate response by the prison would likely have prevented harm in the Wisconsin case and would help fulfill the goals and obligations of prevention as outlined by the Supreme Court.

The timeline mentioned above is instructive in that employers will also be measured by what is done after the behavior occurs. Once an employer has information about potential wrongdoing, the clock starts. (However, options to correct behavior are very limited when a supervisor commits actionable harassment coupled with a tangible job action).

In addition, once harassment occurs, the clock also starts for the employee. She or he has limited time in which to file a complaint. In Illinois, a complaint must be filed with the Illinois Department of Human Rights within 180 days of the civil rights violation.4 However, in deferral jurisdictions, the time for filing with the Equal Employment Opportunity Commission is extended to 300 days.5 Employers may be tempted to become clock watchers and perhaps even exhale when these time periods are exhausted. But this approach is not a best practice and may result in more harm later.

Taking Action Even When the 180- or 300-Day Time Period Expires

Since employers are required to prevent and correct illegal harassment, and since avoiding harm is a primary goal of discrimination law, employers would be well served to accept internal complaints that are filed months or even years after the time for legal filing has expired. Recognizing that there are limitations, such as spoliation, faded memories and so on, to receiving dated claims, refusing to examine such claims may expose the entity to liability if the offending employee commits future acts of harassment.

In addition, failure to investigate a claim of harassment could even result in penalties against the employer or persons not involved in the underlying complaint. The Illinois Human Rights Act contains a provision that it is a civil rights violation for a person to aid or abet the commission of a violation of the law.6 Seemingly, failing to perform a duty—to investigate the complaint—is not an overt or affirmative act, and therefore the non-performer would not have aided or abetted anyone. However, plaintiffs have argued and courts have considered, that failing to investigate a complaint could actually be an affirmative adverse employment action which could support a retaliation claim.7 It is not beyond the realm of possibility that an individual human resources officer or counsel could be charged with violating the “aiding” and “abetting” provision of the Illinois Human Rights Act by failing to investigate a claim.

Finally, in the interest of good corporate citizenship (public and private), protecting employees from harassment should be ingrained in the culture. Responding to complaints, even when the conduct occurred years ago, sends a strong message to potential harassers, and demonstrates to all employees that victims of illegal harassment are valued.

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1. Burlington Industries v. Ellerth, 524 U.S. 742, 765 (1998).

2. Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998).

3. Erickson v. Wisconsin Department of Corrections, 469 F.3d 600, at 603 (7th Cir. 2006).

4. Illinois Human Rights Act 775 ILCS 5/7A-102(A)(1).

5. 29 C.F.R. §1601.13.

6. Illinois Human Rights Act 775 ILCS 5/6-101(B).

7. See e.g. Fincher v. Depository Trust and Clearing Corp., 604 F.3d. 712, at 722 (2nd Cir. 2010).

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March 2018Volume 19Number 3PDF icon PDF version (for best printing)