IS THIS THE EXCEPTION OR ... An Employer Should Know When a Potential Harassment Case May have Them by the Throat!

An Employer should know when a potential harassment case may have them by the throat! 


Here are five signs that you might want to answer "Yes, please, and thank you, Sir!" when you get that Equal Employment Opportunity Commission (EEOC) request to mediate.


The accused is a member of management and has admitted to the harassment, OR he hasn't admitted it, but you are pretty sure he's guilty. This one is obvious. Maybe he didn't admit to sending that picture on Twitter, but he can't say "with certitude" that it's not him. He's probably guilty, and even if he isn't, you're going to have a hard time persuading the EEOC, a judge, or a jury that it didn't happen.


If you have an admission, or just a terrible feeling in your gut that won't go away, your case may be a dog. Your work environment is so bad that you "should have known" the harassment was going on. Normally, an employer is not liable for harassment that it's unaware of, which stands to reason. After all, how can you correct a problem you didn't know existed? BUT . . . if a work environment is so bad that anyone with eyes to see and ears would have been aware of it, then a court is likely to find that you had "constructive knowledge" of the harassment. This means that, in the eyes of the law, you knew about it, whether you actually knew or not.


If you had actual or constructive knowledge of the harassment, then you probably won't be able to use the defense to your inaction that the plaintiff didn't report the harassment. Your case may be a dog.


You got a complaint of harassment, and then you sat on it. Ideally, the investigation of a harassment complaint will begin the same day you get it, (or even earlier, if you had actual or "constructive" knowledge of it before you got the complaint.) It looks bad when you get a complaint and don't even start interviewing anybody until two or three weeks later, or even worse, when you wait until the day you get the EEOC charge or the nasty letter from an attorney in the mail.


If a delay cannot be avoided, then be sure to document the reason for the delay, and be sure to do as much you can until the key individual comes back. And, of course, promptly follow up with the employee after he or she returns to work.If there is a delay and you don't have a good excuse, your case may be a dog.


You can't even remember the last time you had harassment training. The EEOC and a good plaintiff's lawyer will always ask members of management whether they've had harassment training, how long ago, who did it, what it covered, etc. There are at least two reasons for this: 

(1) Your agency will look very bad if you haven't done it recently, and 


(2) inadequate training will give the plaintiff an excuse for not having reported the harassment in a timely manner. The Employee can plausibly claim that he or she didn't report it because she didn't know she was supposed to report it, or that she didn't know how to do it.


You should conduct harassment training for supervisors and managers at least once a year, and the training should include how to identify harassment, "high-risk behaviors," what to do if the manager receives a complaint of harassment or sees a situation in which she believes that harassment may be taking place, and retaliation. Ideally, you'll conduct annual harassment training for non-management employees, too, which should cover the same topics, but in more abbreviated form. This can be done live or through web-based programs or videos. (Live and web-based are generally better than videos because they are interactive.)


If your harassment training isn't current, your case may be a dog.
You have established that "quid pro quo" harassment may have occurred. Let's say an employee comes to you and says that she was demoted because she did not surrender to her boss's "charms," whistle blowing, etc. Let's further say that you have done everything right -- you have mandatory annual harassment training for management and non-management employees, which this boss attended last month, you have a great policy, you promptly investigated the complaint, and you fired him and fixed the egregiousness as a "thank-you" for coming forward. 


Unfortunately, you are still liable ("strictly liable") under the law, because the employee suffered what the courts call a "tangible job detriment" as a result of the alleged harassment. All the good things you have done are relevant to damages, but not to liability, meaning that at a minimum you could be stuck with nominal damages and his or her attorneys' fees.


One would hope that an employer this good would not have to worry about getting a charge or lawsuit from the victim, but if he or she chooses to pursue legal action, your case may be a dog. It may be about to bite you in the ASS!