Responding to sexual harassment starts with handbook

By Kathleen T. Alt and Carrie C. Doyle

Each day seems to bring another public announcement of sexual harassment or sex assault allegations against employees, directors, and officers of companies.  Not only does the accused individual find himself under extreme public scrutiny; the company’s response to the allegations is also typically central to the story, and companies understand that their response will impact their public image.  Given the heightened media scrutiny of companies’ responses to sexual harassment allegations and the general increase that we have seen in these types of allegations, below are some general recommendations for companies faced with sexual harassment allegations against one of their employees.

Make sure your employee handbook provides an adequate mechanism that complies with the law for reporting and investigating sexual harassment allegations.  A company should have an employee handbook that includes its policy on sexual harassment and provides clear mechanisms for employees to report sexual harassment within the company and for the company to respond to the allegations. 

Comply with the employee handbook.  When an employee or member of the public alleges that he or she has been the victim of sexual harassment by one of your employees, the company should follow the procedures outlined in its employee handbook to investigate and thoroughly and adequately respond to the allegations.

Engage an outside investigator.  Depending on the procedures outlined in the employee handbook, the company should evaluate whether to hire an outside investigator to complete an investigation of the allegations.  Many such firms now exist that provide these services and include former employment litigators who are knowledgeable about this area of law. 

Understand related risks.  Either an employee who alleges sexual harassment or an employee against whom the sexual harassment allegations have been brought has the potential to later allege that he or she was discriminated against by the company as demonstrated by the company’s actions in response to the allegations.  Engaging an outside neutral investigator and carefully considering whether paid administrative leave or other action during the investigation is appropriate for the accused or accuser are two examples of steps a company can take to mitigate the ongoing risk.

Conduct an investigation and reach a final determination.  Once the company knows about the allegations, it has an obligation to investigate the allegations and, if the investigation concludes that there was sexual harassment, remedy the situation.

Purchase an employment practices liability (EPL) insurance policy.  Companies should consider purchasing an EPL policy, which provides protection for the company in the event of employee-rights claims, such as harassment and discrimination.

Engage an attorney knowledgeable in employment law.  Employment attorneys can help businesses navigate all of the aspects of responding to sexual harassment allegations, including:

Ensuring that the company’s employee handbook includes adequate policies and procedures regarding sexual harassment.

Providing guidance to the company in complying with its employee handbook when sexual harassment allegations arise.

Conferring with the company on hiring an outside investigator and determining the appropriate remedial action, if any, based on the results of the outside investigation.

Preparing a response to a federal or state agency that has received a complaint from an employee or former employee of the company that alleges workplace discrimination resulting from sexual harassment.

The above recommendations are general in nature, do not constitute the formation of any attorney-client relationship, and should not be interpreted or relied upon as legal advice.  As is clear from the myriad of media stories covering sexual harassment in the workplace, every situation is unique and there is a spectrum of appropriate responses to any allegations.  As we hope our recommendations make clear, however, having clear policies in place, taking allegations seriously, and handling investigations thoroughly and professionally with adequate consequences, if any, can help to minimize the risks posed by such allegations to employers. 

Kathleen Alt is a partner at Berg Hill Greenleaf Ruscitti LLP, Boulder, who is an experienced trial attorney. Her focus at BHGR is criminal defense and employment law.  Carrie Doyle is an associate at Berg Hill Greenleaf Ruscitti LLP who advises clients including companies, governmental entities, and Native American tribes, on regulatory, litigation, and employment matters.

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