February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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Employers Take Note: Sexual Harassment is Not OK … Finally

Before becoming a lawyer, I was a Captain in the U.S. Army. I was stationed overseas for much of my career, and served a remote tour in a faraway land. During that tour of duty, I learned many things. But the most important lesson I learned — as one of two female officers on the base — was to speak up (and out) against sexual harassment.

I have always been thankful that I was in a position where speaking up (and out) was OK. But it appears that has not been the case for countless women — many of whom are now speaking up (and out) after many years of (apparently) remaining silent.

Now that the court of public opinion has finally decided that sexual harassment is not OK — as evidenced by the public condemnation of the powerful men who have been accused of such conduct — it stands to reason that there will be an uptick in harassment complaints in the workplace. Thus, a quick reminder on the steps an employer should take when such a complaint is made is in order.

As we all know, it is the employer’s obligation to have in place a policy that prevents harassment, a complaint mechanism, and to take prompt and effective remedial action. Putting in place a policy and a complaint mechanism is readily understood.

But what does it mean to take prompt and effective remedial action? It means the employer must take the complaint seriously and legitimately try to figure out whether any inappropriate conduct occurred by conducting an effective investigation. It means that the person conducting the investigation should not pre-judge the outcome or interject his or her own experiences into the situation when deciding what remedial action to take. It means that the employer must put steps in place to stop any future harassment. And it means that the employer should check in periodically with the employee who complained to make sure all is OK.

Remember, the question of whether or not an employer took prompt and effective remedial action is determined by a jury with the benefit of hindsight. Given that the court of public opinion has finally decided that sexual harassment is not OK, I suspect future juries will hold employers to a higher standard and will not forgive missteps.

A word of warning — don’t get caught making a misstep. And, consider revamping your anti-harassment policy, training your employees on the policy and managers and supervisors on their responsibilities under the policy.

© 2023 BARNES & THORNBURG LLPNational Law Review, Volume VII, Number 326

About this Author

Norma W. Zeitler, Barnes Thornburg Law Firm, Chicago, Employment Law Attorney

Norma W. Zeitler is a partner in the Chicago office of Barnes & Thornburg LLP and a member of the Labor and Employment Department and the Associations and Foundations Practice Group. She concentrates her practice on employment law, and represents employers in the defense of employment discrimination, retaliatory discharge, breach-of-contract, workplace tort, and restrictive covenant cases in federal and state courts and administrative agencies. She also provides day-to-day counseling for employers on all matters that impact the employment relationship.