What Is The Employer’s Responsibility Once They Are Notified Of Sexual Harassment?
In California, an employer has a mandatory duty to prevent unwanted conduct of harassment in the workplace. That duty includes an obligation of the employer to train people to avoid engaging and harassing conduct and a duty to train the people, including managers and supervisors, on what to do in the event of there being a claim of unwanted harassing conduct.
There seems to be not a lot of emphasis put onto these sexual harassment prevention policies or on training about what to do in the event of a complaint. Some employment laws are only applicable to companies with a certain number of employees or greater. There can be a sexual harassment claim made in a company with just one employee, so this rule applies to every company. There is no exception. If there is a complaint made, it doesn’t even have to be a formal complaint on a formal complaint form.
It can be an oral account, a text message, an email, or someone complaining to their co-worker. As soon as the employer becomes aware of a complaint of harassment, that employer is under a mandatory duty to undertake an immediate and appropriate investigation. What is immediate and appropriate depends on the context. If there is a complaint of sexual harassment at the Chevron Oil Refinery, that is a dangerous location. If you are out there working in a confined space and there is hazardous welding going on, you can’t just leave to go to the corporate office and report harassment. In that context, what would constitute an immediate and appropriate constitution? Maybe the employer finds out about the complaint of harassment and then it takes them a couple of days to get people in the office, because they are out on this project and they can’t spare the worker’s absence. That all has to be taken into account. At a minimum, the employer must do an immediate and appropriate investigation. That can be done with internal employees and it can be done externally. A lot of times, employers hire outside companies.
Some companies get a harassment lawyer to come in and investigate. Upon investigation, which is immediate and appropriate, the employer also has a mandatory duty to take immediate and appropriate corrective action, which means they can’t wait around. They have to do something and that is where we get employers in a lot of trouble. They get a complaint of harassment; the HR person makes a phone call or two and then they wait weeks for the next step.
Meanwhile, the poor victim is blamed for accusing some popular manager of sexual harassment and now the co-workers start giving the victim a lot of grief. The victim is not protected. That’s how a case snowballs and turns into a retaliation claim. The employer is supposed to do an immediate and appropriate investigation and take immediate and appropriate corrective action. When they do that properly, we don’t usually have a case, because that is what the law says. However, the corrective action they take can be simply separating the workers.
The corrective action can also be a suspension, pending an investigation, or a termination. When they don’t engage in the appropriate corrective action, it typically involves managers that are valuable to the company. The subordinate complains about the manager and now the company has a valuable manager that has a compliant made by a less valuable employee. The manager either is not disciplined properly, is not trained, or is not separated from the complainant, and that usually leads to more problems for the employer. Employers continually think that they can get a complaint of unwanted harassing conduct, do a shoddy investigation, take no corrective action, and get away with it. It would be better for the whole system if the employer did what they were supposed to do, but they tend to protect the harasser and punish the victim.
Until the system changes, there are going to be plenty of cases where the employer doesn’t take appropriate corrective action or they take a weak action like giving the harasser a write up. A weak response by the employer only emboldens the harasser into doing more harassment. He knows he can keep doing it with impunity.
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