When you read about sexual harassment claims, the focus is on what the alleged harasser is accused of doing. The sordid details are what attract readers. The Marchuk v. Faruqi & Faruqi case is one recent example.
But in the real world of harassment litigation, the focus is on what the employer did. That’s because the plaintiffs and their attorneys don’t just want a verdict against the usually shallow-pocket individual defendant. They want a verdict against the usually deep-pocket employer. To get that, they need to show that the employer didn’t take the issue seriously.
The time to start preparing to defend these claims is before they’re brought. And you can start by answering these questions:
- How current is the company’s policy against harassment? Does it recognize the breadth of activity that can constitute harassment? Does it list the various protected categories and provide multiple avenues for employees to raise concerns?
- Can employees find the policy easily? Better yet, have they signed a form acknowledging receipt of the policy (or the handbook containing it).
- Have managers received the bi-annual harassment training mandated by California law?
- Do managers behave appropriately? Legally, the actions of managers and supervisors are deemed actions of the company. If there were instances where managers didn’t behave appropriately, have the issues been addressed in a way that is reasonably calculated to prevent them from recurring?
- When managers observe inappropriate behavior at work, do they respond effectively? A manager turning a blind eye to bad behavior will be portrayed as the company condoning it.
- Has your company identified a qualified investigator to evaluate harassment complaints? You want someone who’s far enough from the situation to be impartial, who has experience investigating these types of issues, and who understands how to question witnesses.
How your company responds when it receives a harassment complaint remains critically important. But there are steps employers need to take before that point to show that they’re serious about providing a harassment-free workplace.
