Article by Janean Acevedo Daniels
April 4, 1996
SEXUAL HARASSMENT IN THE WORKPLACE:
AN EMPLOYER'S GUIDE TO PREVENTION,
INVESTIGATION AND REMEDIATION
Rena Weeks' $7
million sexual harassment verdict against the prestigious law firm
of Baker & MacKenzie stunned the legal profession and left many
employers--not just law firms--shaking in their boots. This article
describes the steps employers should take (besides banning M&Ms
from the workplace) to effectively prevent, investigate and remediate
harassment in the workplace to minimize their exposure in this explosive
area of employment law.
may be liable for sexual harassment even when it is unaware that
the harassment is occurring. For example, an employer is liable
for "quid quo pro" sexual harassment--where the harasser
conditions employment benefits on sexual favors--regardless of the
employer's knowledge of such behavior. Employers are also liable
for sexual harassment that creates a hostile and intimidating work
environment where the harasser is the complaining employee's supervisor.
If the harasser in a "hostile work environment" case is
a co-worker rather than a supervisor, the employer is liable if
it knew or should have known of the harassment and failed to adequately
investigate and remediate the situation. Accordingly, employers
must make a diligent effort to prevent, promptly investigate, and
remediate sexual harassment.
Fair Employment and Housing Act ("FEHA") and federal guidelines
promulgated by the Equal Employment Opportunity Commission ("EEOC")
require an employer to take all steps necessary to prevent sexual
harassment from occurring. Under the EEOC guidelines, preventative
measures include taking steps to sensitize employees to the issue,
expressing strong disapproval of sexual harassment, developing appropriate
sanctions, informing employees of their right to raise the issue,
and informing employees how to register a complaint.
The FEHA requires
all employers to obtain from the Department of Fair Employment and
Housing ("DFEH") an information sheet regarding sexual
harassment. The DFEH notice (or its equivalent) must be distributed
to all employees. The notice must describe the illegality of sexual
harassment and must define and give examples of it. The notice must
also explain internal and external procedures and remedies available
to employees, give directions on contacting certain enforcement
agencies, and inform employees that they are protected against retaliation
in filing a complaint or participating in an investigation.
to the DFEH notice, employers should adopt and distribute to employees
a policy against sexual harassment. The policy should include, at
a minimum, the essential information set forth in the DFEH notice.
Employers should also consider arranging seminars and training sessions
on sexual harassment and discrimination issues for all employees,
particularly those in management positions.
of an employee's sexual harassment complaint requires a prompt,
thorough, and sensitive response by an employer. The following steps
may be used as a guideline in conducting such an investigation:
a qualified individual to conduct the investigation - Select a person
with proper training and experience (i.e., knowledge of personnel
matters in general and sexual harassment in particular). The person
designated should have no particular bias with regard to the situation
in question. Consider involving legal counsel at this early stage
to protect the investigation under the attorney-client privilege,
particularly if the complaint raises the possibility of significant
2. Meet with
the employee making the complaint - This meeting has two purposes:
(a) to understand the employee's concerns and obtain the employee's
version of the facts; and (b) to reassure the employee that the
employer takes her allegations seriously and is committed to thoroughly
investigating the matter.
At the outset
of the interview, ask the complaining employee if she believes that
there is any reason why the investigator cannot be fair and objective.
If the employee expresses serious reservations about a particular
investigator, consider having another person handle the investigation.
employee about the facts of the harassment and how it has affected
the employee's work environment. Ask whether the employee's ability
to work is still being affected; who was involved and/or who witnessed
the incident; who the employee spoke to regarding the incident;
and whether any documents exist regarding the incident. Find out
whether the employee is aware of any other instances of harassment
by the alleged harasser. Ask the employee what her suggestions are
for resolving the situation. Encourage, but do not require, the
employee to submit a written statement to document her specific
concerns as precisely as possible. Never require the complaining
employee to confront or meet with the accused harasser.
complaining employee that you will take steps to maintain the confidentiality
of the matter by limiting the disclosure of the information to those
who have a "need to know." Instruct the employee to do
the same. Inform the employee that she is protected by law from
any retaliation as a result of raising her complaint, and that she
should immediately report any such retaliation to the investigator.
Finally, tell the employee that she will be informed of the results
of the investigation and any remedial action taken.
a detailed summary of the meeting - Consider giving a copy of the
summary to the employee to confirm the discussion and avoid any
misunderstanding of the issues.
any potential witnesses - These employees should also be advised
of the importance of maintaining confidentiality and of their right
to be free from retaliation.
the alleged harasser to obtain his version of the events - Explain
the allegations in detail and ask the alleged harasser whether he
has any additional information that would help the employer understand
the situation. Once again, stress the seriousness of the allegations
and the importance of maintaining confidentiality. Leave difficult
or confrontational questions for the end to avoid alienating the
individual at the outset.
an investigation summary - Thoroughly document the issues discussed
in all the interviews immediately after they are conducted. When
the investigation is complete, summarize the information in a written
investigation summary. Gather any witness statements or other documentation
and place them in a consolidated investigation file.
7. Notify the
parties of the results - Meet (separately) with the complaining
employee and the alleged harasser to tell them the results of the
investigation and explain what, if any, disciplinary and/or remedial
measures will be taken. Give each of them a detailed written memo
with the same information.
The Ninth Circuit
has announced a stringent standard for remediating sexual harassment
in the workplace. Remedial measures must be "reasonably calculated
to end the harassment" and employers "should impose sufficient
penalties to assure a workplace free from sexual harassment."
Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991). In evaluating
the adequacy of the employer's response, the court may consider
whether the remedy was effective in stopping the harassment. Id.
the harassing co-worker pestered the complaining employee for dates
and wrote her disturbing notes. The employer, the IRS, transferred
the harasser to another office but told the harasser he could return
in six months. The complaining employee became frightened at the
prospect of the harasser's return to the office and filed an internal
complaint that resulted in a federal court action.
court found that the IRS had adequately remedied the harassment
and granted summary judgment in its favor. The Ninth Circuit reversed,
finding that disputed issues of fact existed regarding the sufficiency
of the IRS' response to the situation. The Ninth Circuit noted that
the IRS only told the harasser to stop. Ellison, 924 F.2d at 882.
The IRS failed to condemn the behavior, reprimand the harasser,
or warn him that repeated harassment would result in suspension
or termination. Id. The court warned that "employers send the
wrong message to potential harassers when they do not discipline
employees for sexual harassment." Id.
Ninth Circuit case, Intlekofer v. Turnage, 973 F.2d 773 (9th Cir.
1992), the employer repeatedly warned the harasser to discontinue
his behavior and told him he would be disciplined if he did not.
Although the harassment continued, the employer failed to impose
any disciplinary measures.
The Ninth Circuit
held that the response was insufficient because the employer failed
to take steps reasonably calculated to end the harassment. Id. at
781. The court indicated that an oral warning is sufficient "only
as a first resort," and that if the harassment continues, an
employer "must impose more severe measures in order to ensure
that the behavior terminates." Id. at 780. Otherwise an employer's
initial warning is nothing more than an "empty threat."
Id. The court also implied that, at a minimum, an employer must
impose some form of discipline in every case, even if it is merely
a stern warning. Id. at 778.
Intlekoffer also announced two guidelines employers should follow
in remediating workplace harassment. First, even if the harasser
ceases his overtly harassing behavior, "in some cases the mere
presence of an employee who has engaged in particularly severe or
pervasive harassment can create a hostile working environment. Ellison,
924 F.2d at 883 (emphasis added). Where the harassment involves
physical force, touching, "stalking," or any other actions
that cause the complaining employee to fear the harasser, an employer
should immediately remove the harasser from the complaining employee's
work environment and preclude any contact between the individuals.
must remedy sexual harassment without adversely affecting the complaining
employee's terms or conditions of employment. Ellison at 881-882;
Intlekofer at 780, fn. 9. Thus, an employer cannot transfer the
complaining employee to a less desirable work location or in any
way "punish" her in an attempt to remedy the situation.
employer should continue to monitor the situation to assure that
the harassing behavior ceases.
In summary, employers are required to provide employees with specific
information regarding sexual harassment and express strong disapproval
of such behavior. Complaints of sexual harassment should be promptly
and thoroughly investigated. If an employer finds that an employee
has engaged in harassment, it must take immediate action designed
to end the behavior.
Harassment and Discrimination Reporter, Vol. 1, No. 3 (8/96)
Published Articles by Janean Acevedo Daniels:
Superior Court's Latest Word on Sexual Harassment: Harris v.
Forklift Systems," Santa Barbara Women Lawyers Newsletter,
Vol. 5, Issue No. 2 (Summer 1994)
Cesareans: A Growing Intrusion into the Lives of Indigent Women,"
13 Clearinghouse Review 1064 (1988)