WHAT ARE YOU GOING TO DO TO THE LITTLE BOY WHO CRIES WOLF? OR ARE ALL THESE ALLEGATIONS GETTING OUT OF HAND? EMPLOYERS MUST WATCH OUT FOR RETALIATION CLAIMS
In the wake of the Harvey Weinstein revelations and the numerous claims of alleged sexual harassment against big name celebrities and public officials, employers are re-examining their sexual harassment policies. As the number of sexual harassment allegations have increased in almost every business sector, more and more women have felt empowered to come forward. This tests employers’ ability to timely investigate the claims and determine what, if any, appropriate corrective action is warranted against the alleged harasser. It also tests the employers’ ability to respond to claims that lack merit.
However, another challenge is what happens when the dust settles and the victim or non-victim is a still a current employee? Oftentimes, employers are faced with the reality that a large percentage of the workforce has hard feelings on all sides. When the rubber hits the road, this often means the buddies of the harasser are angry at the victim for coming forward. This may lead them to take their aggression out against the victim by giving him or her a less cushy shift, assignment, or any other myriad of actions. Or maybe they are just not as willing to help the “victim” in his/her job at work. Employers have a legal obligation to ensure this does not happen.
Almost every single anti-harassment employment law, including Title VII of the Civil Rights Act which prohibits harassment based on sex, includes an anti-retaliation provision. On a basic level, these anti-retaliation provisions prohibit punishing an employee for asserting their rights to be free from employment discrimination, including harassment, even if their claim has no merit. This means it’s unlawful to give the victim an unpleasant shift or assignment in response for coming forward. This rule is often hardest to apply when it is determined the claims were unfounded.
Employers would be well advised to proactively attempt to prevent retaliation claims. In the last decade, the Equal Employment Opportunity Commission, the federal watch dog for anti-employment discrimination laws, has seen retaliation claims become the number one charge filed against employers. Best business practices demand employers try to avoid the claims. For instance, employers can work to 1) avoid publicly disclosing the allegations; 2) avoid isolating the alleged victim or even identifying the victim, if possible; and 3) ensuring the victim is treated the same as every other employee. While this is just the tip of this iceberg, the key is recognizing it exists so it won’t sink your ship.
Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general. If we can be of assistance in this area, please contact us at firstname.lastname@example.org or 203.454.0560.