Set Up Sexual Harassment Complaint Procedure to Safeguard Site Against Liability

Last year, HUD and the Department of Justice (DOJ) announced an interagency task force to combat sexual harassment in housing. This joint outreach followed a DOJ pilot program started in October 2017. The initiative sought to increase the Department’s efforts to protect women from harassment by landlords, property managers, maintenance workers, security guards, and other employees and representatives of rental property owners. During the pilots, the DOJ developed and tested ways to better connect both with victims of sexual harassment in housing and with those organizations that victims may turn to first for help—including law enforcement, legal services providers, public housing authorities, sexual assault services providers, and shelters.

Alongside concerns of potential harassment between staff and residents, owners must also pay attention to sexual harassment claims by employees against their supervisors and work peers. According to the U.S. Equal Employment Opportunity Commission (EEOC), sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees.

The EEOC defines “sexual harassment” as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

What can you do to protect yourself from being held liable if one of your supervisors sexually harasses an employee? According to the EEOC, prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. And they can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

You may already have a policy prohibiting sexual harassment and explaining what sexual harassment is. But you also need to make sure you have an effective sexual harassment complaint procedure that makes it easy for employees to come forward and report harassment so that you can stop the harassment before it becomes “severe” or “pervasive”—and before the employee sues. And if an employee does sue, a well-written and effectively enforced complaint procedure may convince a court that you took reasonable steps to prevent and correct the behavior.

We’ll give you a Model Procedure, based on the EEOC’s latest guidelines, which you can distribute to your employees along with a copy of your site’s policy prohibiting sexual harassment.

Basics on Current Sexual Harassment Law

It’s unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment doesn’t have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it’s illegal to harass a woman by making offensive comments about women in general. In addition, both the victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it’s so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision such as the victim being fired or demoted. The harasser can be the victim’s supervisor, a supervisor in another area, or a co-worker.

The Supreme Court has ruled twice that an employer is always liable for a supervisor’s harassment if the harassment significantly affects the victim’s employment status—for example, by causing the employee to lose a promotion or be demoted or terminated. If the sexual harassment doesn’t significantly affect the victim’s employment status but creates a hostile or offensive environment, the employer may be able to avoid liability or limit damages. The employer can do this by showing both:

• That it exercised reasonable care to prevent and promptly correct any harassment; and
• That the harassed employee unreasonably failed to take advantage of any preventive or corrective opportunities the employer provided (for example, the employee didn’t use the employer’s complaint procedure to report the harassment) or failed otherwise to avoid harm [Burlington Industries, Inc. v. Ellerth; Faragher v. City of Boca Raton].

After these Supreme Court decisions, the EEOC published enforcement guidance on an employer’s liability for unlawful harassment by supervisors. These guidelines set out what an employer should do to prevent unlawful harassment. And they stress the importance of having a policy and complaint procedure on sexual harassment, and distributing both to all employees.

What Complaint Procedure Should Do

Your complaint procedure should encourage employees to report sexual harassment as soon as possible. In part, this means making sure a harassed employee won’t encounter any unreasonable obstacles to making a complaint. For example, requiring harassed employees to write out complaints might discourage complaints and open the door to lawsuits.

Like our Model Procedure, your procedure should:

Encourage victims to make complaints. Encourage your employees to come forward as soon as possible. Isolated incidents of sexual harassment generally don’t violate the law. But a pattern of such incidents may be unlawful. If the victim doesn’t complain before the harassment becomes a pattern, you can defend yourself by showing that the employee didn’t take advantage of your company’s established procedure before the harassment became severe enough to violate the law. This makes it difficult for an employee to get a court to award damages. But if you fail to encourage employees to complain before harassment becomes severe or pervasive, it will be difficult to establish this defense [Proc., par. 1].

Encourage all employees to report any sexual harassment they observe. Don’t just encourage victims to report harassment. Also encourage anyone who witnesses sexual harassment to report it. That way, you’ll have an easier time uncovering harassment and getting rid of it from your workplace. By asking witnesses of harassment to report it, you also make clear to all your employees that you’re trying to prevent and promptly correct sexual harassment [Proc., par. 2].

Give employees easy ways to complain. For your complaint procedure to be effective, you need to make it as easy as possible for employees to report sexual harassment. That means you need to give employees a choice of accessible individuals to complain to. A complaint procedure that requires employees to complain first to their supervisors isn’t always effective against sexual harassment because the supervisor may be the harasser. So tell employees that they can complain not only to their supervisors but also to any management-level employee.

Also, designate at least one official outside the employee’s chain of command to take harassment complaints. If you have a director of human resources, designate him or her. Otherwise, designate a person in a senior management position, such as a vice president. By allowing an employee to bypass the chain of command, you make it easier for the complaint to be handled impartially. An employee who reports harassment by his or her supervisor may feel that an official within the chain of command will more readily believe the supervisor’s version of events [Proc., par. 3].

You should require all managers and supervisors to report sexual harassment complaints to appropriate officials right away. Even if the victim wants to keep a complaint confidential, managers and supervisors should understand that they have a duty to report harassment complaints. Otherwise, you could be liable for failing to act on the complaint.

Assure confidentiality of complaints. Assure your employees that you’ll protect the confidentiality of their complaints to the greatest extent possible. That way, they’ll be more willing to come forward [Proc., par. 4].

On the other hand, never promise complete confidentiality. You won’t be able to conduct an effective investigation without revealing certain information to the accused harasser and potential witnesses.

Share information about harassment accusations only with people who need to know it. Tell people who get complaints and investigate complaints that they must keep the information confidential. You need to protect the privacy of both the victim and the harasser. If you don’t, either of them may file a defamation or invasion of privacy claim against you.

Assure protection against retaliation. To be effective, your complaint procedure should assure employees that there will be no retaliation against employees for reporting sexual harassment or giving information about harassment in good faith [Proc., par. 5].

That means you should take measures to prevent retaliation. For example, when investigating a complaint, remind the harasser and the witnesses about the prohibition against retaliation. You should also scrutinize employment decisions affecting the complaining employee during and after the investigation to ensure that no one retaliates against the employee.

Although you don’t want to discourage your employees from making complaints or reporting violations, it’s okay to include the term “good faith” to remind them to exercise good faith when they make a complaint. These words send a signal to your employees that they should consider their motivation when they make a complaint and that the complaint procedure isn’t a tool to use inappropriately—for example, to get even with a supervisor who gave them a poor job evaluation.

Have Employees Acknowledge Procedure

Distribute the new complaint procedure to all your employees. This includes temporary employees, day laborers, and anyone who gets a paycheck from you.

Also, have employees sign an acknowledgment saying that they’ve read and that they understand the policy and complaint procedure. That way, you’ll have a record showing that an employee was aware of your community’s policy to encourage victims and other employees to report sexual harassment. And remember to post the complaint procedure in central locations and to include it in your employee handbook.