Perspective on Sexual Harassment Complaints

Two of my passions in life are employment law and Leonard Cohen’s poetry.  However, I will admit that I never expected them to cross paths.  Imagine my delight when, last week, they did! In a trial in California, an employee alleging sexual harassment and discrimination pointed to the gift of a book of Leonard Cohen’s poetry from a co-worker as evidence of her claims.  (You can read more about the lawsuit and the testimony surrounding the book here:  http://fortune.com/2015/03/17/kleiner-perkins-ellen-pao-poetry/).  As I contemplated the fact that I have given Leonard Cohen CDs as gifts to co-workers on occasion myself, I realized I had a great new blog topic. What actually is sexual harassment?

As many of you may remember, I strongly recommend that employers take daylight savings time as a reminder to review their harassment policy and take stock of sexual harassment training needs for the year.  (You can read more about why in my previous blog here: (https://www.mwblawyers.com/employmentblog/spring-is-here-when-was-your-last-sexual-harassment-training/).  But dealing with sexual harassment claims doesn’t stop at the policy or training:  you have a policy, you do the training, and then you get a complaint.  What now?  Rule Number 1:  Don’t Panic.

I often receive calls from employers who are certain the end of their business is in sight because an employee has made a really inappropriate remark to another employee.  While employers must take these situations seriously, and discipline or other action toward the offending employee may well be appropriate both from a legal perspective and for workplace culture and morale, you  may be relieved to learn that the law will not likely hold an employer liable for one or two bad jokes or insensitive remarks.  For hostile work environment harassment to be actionable under the law, it must be so severe and pervasive as to alter the terms and conditions of the employee’s employment.  Further, if no adverse action has been taken against the complaining employee, the law requires that the employee report the harassment in accordance with your policy and give the employer the opportunity to correct the behavior.

If as the result of your investigation, you substantiate inappropriate remarks, correcting the behavior does not always mean firing the individual who has made the remark.  Instead, the employer is only required to take reasonable measures to stop the harassment.  In many cases, this may be training for the offending employee, discipline, transfer or a combination.  The key is then following up with the complaining employee to confirm that the behavior has indeed ceased.

To aid you in assessing the liability involved with any particular comment, I pulled some recent court cases regarding remarks or isolated incidents of inappropriate behavior. In reviewing each of these situations, remember that the U.S. Supreme Court has plainly stated that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to” actionable sexual harassment (Faragher v. City of Boca Raton).

I anticipate many of you may be surprised at the type of comments that Courts have found not actionable under a harassment claim:  Employee’s comment regarding his desire for a female co-worker’s body part  was not actionable in Penn v. Citizens Telecom Services Co., LLC; Co-worker’s taunting of employee and her boyfriend referring to oral sex was not actionable in Walker v. Mod-U-Kraf Homes, LLC; and Co-worker allegedly brushing his hips against employee and saying “woo hoo” was not actionable in Herbert v. Olymplia Hotel Management, LLC.

I am not suggesting that any of the behavior described in these cases should be tolerated.  However, I offer these opinions for perspective.  Whenever an employee makes an allegation of an inappropriate comment or joke, the sky is likely not falling, and you are not certain to be the subject of prolonged litigation.

Instead, take a breath, conduct a quick but thorough investigation, and take reasonable steps to prevent further inappropriate conduct, consulting counsel as necessary.

And, if you haven’t already, I recommend you check out some Leonard Cohen music – “Suzanne” remains one of my all-time favorites.  As an HR professional, you may, like me, appreciate his portrayal of the beauty and struggle of humanity we see almost daily.





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