Category Archives: Sexual Harassment

Quirky Question #284: If a tree falls in the forest and no one hears it, can you still unlawfully retaliate against it?

Question: One of our male supervisors wants to fire a female employee who complained that he was sexually harassing her. The harassment allegations appear to have some substance: he asked her for pictures of herself in a bikini; told her to “stay off [her] knees,” which she viewed as sexual innuendo; and told her that her regulation length shorts were too short. Also, the grounds for termination (driving a vehicle with the door open, creating a safety hazard) have been overlooked in other situations. We are a little worried that she will claim we are retaliating against her for the sexual harassment complaint.  But the supervisor says he never heard about the sexual harassment complaint.  So, if he didn’t know about the complaint, he could not possibly retaliate against her on the basis of that complaint, right?  You could get this case thrown out before it ever went to trial, right?

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Quirky Question # 158, Reporting Harassment to the Harasser

Question:

Our company has a sexual harassment policy.  The policy makes clear that an employee who feels as though he or she has been harassed should report the problematic conduct to our Director of Human Resources.  The policy also provides that, if more convenient, or for any other reason, the employee also can report the harassing behaviors to anyone else in management.  Essentially, we’ve tried to make it as easy as possible for an employee to report harassment so our company can address the employee’s concerns effectively.

One of our employees recently filed a Charge of Discrimination with the EEOC.  She claims that she was sexually harassed by the Director of Business Development, one of our company’s managers, and describes some pretty serious conduct.  In her Charge, she contends that she directly confronted this individual and advised him that his behaviors were unwelcome.  She also stated in her EEOC Charge that her direct communications with this individual constituted her “report” of sexual harassment to company management.

Surprise, surprise, our Director of Business Development never said anything to anyone else about this harassment “complaint”.  Is this legit?  Can the sole report of the harassment by the alleged victim of the harassment be made to the harasser? Answer→

Sexual Harassment and Negligent Hiring, Can Same Conduct Justify Two Claims, Quirky Question # 152

Quirky Question #152

One of our employees complained of sexual harassment. We investigated, though admittedly not as promptly as we should have. We discovered that the harasser had engaged in some seriously problematic conduct. Our investigation also revealed that the harasser had engaged in similar conduct at a prior employer and previously, at our company, with a different employee who had elected not to report.

The victim of the harassment is now threatening to sue us and demanding settlement compensation. Her lawyer suggests that if we do not settle, he will sue us for multiple claims, including both sexual harassment and negligent hiring. (Apparently, his investigation also revealed the past problems.) Is this legit? Can we be sued for multiple claims based on the same conduct?

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Sexual Harassment, Quirky Question # 133

Quirky Question # 133:

Our company provides private correctional and detention management to government agencies around the globe.  One of our employees, a detentions officer, reported to our Ethics Officer that a co-worker called her work phone and asked her to engage in sexual intercourse and to be his “booty call” or “one night stand.”  She refused to file a formal written complaint.  Our Ethics Officer spoke with the co-worker, who denied the allegations and stated instead that the complaining employee had sexually harassed him.  Given the “he said, she said” nature of the complaints, the Ethics Officer told both employees to keep it professional at work.

A few weeks later, the employee again reported the same harassment to a supervisor.  The supervisor said he would speak with the Ethics Officer, but nothing more was done regarding the employee’s complaint.  It is undisputed, however, that the co-worker did not bother the employee again following the admonition from the Ethics Officer to both of them to keep it professional.

A few days after this second report of the same incidence, the complaining employee herself was suspended from employment as the subject of a federal investigation involving reports of misconduct including that she had engaged in sex with detainees and brought contraband into the facility.  The supervisor to whom the employee had complained the second time conducted the investigation.  The investigation concluded with a sustained finding that the complaining employee was observed by Officers and detainees blowing kisses, flirting and rubbing up against detainees.  The employee was terminated.

The employee has sued us, claiming that we engaged in unlawful employment practices by failing to take appropriate prompt and remedial action in response to her complaint of harassment and that we retaliated against her for making the complaint by terminating her employment.  Should we be concerned about losing this lawsuit? Answer→

Associational Gender Discrimination, Quirky Question # 118

Quirky Question # 118:

One of our male employees (call him Mr. X) recently complained that a supervisor at our company was sexually harassing Mr. X’s girlfriend, also one of our employees.  We advised him that we would investigate.  Apparently, however, our investigation was not moving sufficiently fast for him.  When Mr. X encountered the supervisor in routine work settings, he was confrontational and unpleasant.  We advised him he needed to tone it down and let our HR Department do its work, but that just seemed to anger him more.  The supervisor who had been accused of harassment informed us that he was getting very nervous about Mr. X’s antagonistic conduct.  Based on this escalating situation, we terminated Mr. X’s employment.He now has filed a charge for “associated discrimination” and retaliation.  Say what?  Can a significant other of our employees claim discrimination because of the way our company allegedly treats their girlfriend? Answer→

Corporate Liability for Employee Actions, Quirky Question # 112

Quirky Question # 112:

We are interested in expanding and diversifying our business in Alaska and are looking at acquiring and operating assisted-living facilities.  Although this is a logical spin-off from our primary business, we do not have any actual experience in this area.  We are attempting to sort through numerous issues related to the operation of these facilities.

We are concerned about local and national news stories detailing patient abuse by employees in such facilities.  Our initial thought is that we should not be responsible for the intentional conduct of our employees in such situations.  However, the tenor of the news reports has us re-thinking that view.  Can you provide any guidance?  We are interested in expanding and diversifying our business in Alaska and are looking at acquiring and operating assisted living facilities.  Although this is a logical spin-off from our primary business, we do not have any actual experience in this area.  We are attempting to sort through numerous issues related to the operation of these facilities.  We are concerned about local and national news stories detailing patient abuse by employees in such facilities.  Our initial thought is that we should not be responsible for the intentional conduct of our employees in such situations.  However, the tenor of the news reports has us re-thinking that view.  Can you provide any guidance? Answer→

Who’s a Supervisor?, Quirky Question # 102

Quirky Question # 102:

We’ve tried hard to institute and enforce an effective sexual harassment policy.  Nevertheless, we still occasionally receive sexual harassment complaints from some of our employees.  Recently, an employee sued us for sexual harassment.  She claimed that she reported the harassment to a relatively low level supervisor and that he failed to take any action in response to her complaint.  She said the harassment intensified after her report.We did not even know she complained.  The “supervisor” (who does not have any hiring or firing authority) never said anything to anyone, let alone someone in our HR Department.  If anyone who truly is in management had been apprised of this problem, we would have investigated and, if appropriate, addressed the issue.  Our employee’s attorney claims that the knowledge of our low level supervisor is imputed to the company.  Can this be right? Answer→