Thursday, September 29, 2016

What is “Immediate and Appropriate”?

In recent posts, we have written about old and new forms of sexual harassment and about the employer’s obligation to investigate harassment complaints.  This week, we address what happens when the investigation is complete and the employer concludes that harassment – or at least conduct that violates the employer’s policy against harassment – has occurred.  According to EEOC regulations, an employer has an obligation to take “immediate and appropriate corrective action” to prevent harassment in the workplace. Exactly what that means has been the focus of court decisions for decades now.
Many years ago, in a case called Meritor Savings Bank v. Vinson, the U.S. Supreme Court held that, because Title VII of the Civil Rights Act of 1964 “affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult,” employers have an affirmative duty to remedy hostile or offensive working environments. Later, in Faragher v. Boca Raton, the Supreme Court held that, if an employer knows or should have known of harassing conduct and fails to take proper remedial action, the employer may be held directly responsible for the harassment.  The employer’s duty is than clear, but because the facts and circumstances of every situation differ, what an employer must do to carry out that duty is less clear.  In determining how to respond, employers must consider the nature of the conduct, the impact on the victim, whether the harassment is a first offense or part of a pattern, and what the relative positions of the harasser and the victim are in the organizational hierarchy. 
Despite the need to consider the facts and circumstances of each case before determining what constitutes timely and appropriate corrective action in response to harassment, we do know that the following characteristics are important:
  • It happens quickly.  The employer should decide on a course of action and begin to implement it within days, not weeks, of determining that harassment has occurred.
  • It’s proportional.  Harassing conduct varies in severity and duration.  It is completely appropriate to consider the seriousness of the harassing behavior when determining what to do in response. 
  • It makes an impact.  The employer’s response to harassment should make it less likely that the offending behavior will re-occur.  The harasser, and others who are aware of the employer’s response, should be motivated to avoid similar conduct in the future.
  • It’s on record.  Investigative results and responsive corrective action should be documented.  Doing so makes it easier to prove that the employer carried out its duty, and may also serve as a source of evidence in future harassment investigations.
  • It balances employee privacy with a deterrent effect.  Employees need to know that complaints of sexual harassment will be taken seriously by their employer, and that there are consequences for engaging in harassing behavior.  It is often not necessary, however, to widely publicize the details of disciplinary action taken in response to harassment.  If disciplinary actions are generally kept confidential, discipline taken in response to harassment should be kept confidential, except as may be required to reassure the victim and alert supervisors to the need to observe future interactions between the harasser and the victim. It is never appropriate to publicize the identity of the victim of harassment or to share details about the impact of the conduct on the victim.
  • It’s consistent.  Similar conduct should result in a similar response.  Corrective action should be consistent regardless of the age, gender, ethnicity, or job title of the employee being disciplined. 
Posted by Judy Langevin