Despite decades of experience trying to address sexual harassment in the workplace, the recent wave of workplace harassment complaints all over the media have put employers back on their heels.  Supervisors and managers must know how to respond to a situation of harassment as well as the complaint.

A recent Michigan Appeals Court decision affirms what employers must do to mitigate their liability when sexual or other forms of illegal harassment are found to have occurred.

In the case of Beauvais v. City of Inkster, LEXIS 185577 (ED MI) 11/9/17 a female police officer brought a sexual harassment complaint against another officer at the police station. The sexual harassment occurred, but what the employer did in response to the initial complaint made a big difference as far as the Court was concerned.

When the complaint was made the City put both parties on separate shifts while it investigated. The City did its investigation and held an internal disciplinary hearing on the complaint. The City’s Board determined the harassment occurred (mainly crude verbal statements) and the offending officer was given a three-day suspension for the offense. In addition to the internal hearing the City also hired an independent law firm to investigate the complaint to determine if the City’s Police Department had a gender discrimination and sexual harassment ongoing problem.  The law firm found that the harassment did occur and further sexual harassment training should be implemented for the entire Police Department as well as other city departments.  

That did not stop the original complainant from bringing a sexual discrimination lawsuit in federal court. The lawsuit alleged, among other complaints: hostile work environment discrimination; that the City failed to properly remedy the discrimination; and that the disciplinary hearing and the punishment levied was not sufficient.

The City made a motion for summary judgement and the Court granted the motion based upon its view that the City had appropriately responded to the complaint. What did the Court cite as swaying its opinion?

The City responded to the complaint by:

It immediately moved the parties involved onto different work shifts.

It held a disciplinary investigation and hearing.

It hired an outside party to conduct a separate investigation, not only of the direct complaint but of the entire Police Department with recommendations as to response.

It initiated an organization-wide anti-discrimination training program.

It counseled and punished the offending party in response to what the organization believed was the extant of the infraction. There had been no previous allegations of harassment.

The affirmative steps the City of Inkster took saved the City from further liability in this case.

There is no doubt the wave of sexual harassment allegations now coming to light and all the repercussions from it will be the subject of many organizations’ Boards of Directors and executives at the highest level addressing this issue for some time to come.

The above actions were taken after the harassment occurred.  Employers are going to have to focus on prevention, but the old approaches used for years to educate employees and managers about sexual harassment obviously have not been enough. Employers are going to have to address culture – the toughest thing to change.

CCH reported that a survey just published by Next Concept Human Resource Association found that of 1000 people that responded to the survey 89% agreed with the statement, “ I anticipate that preventing sexual harassment with become a greater concern of company leadership in 2018…” This survey also asked what employers should do to eradicate sexual harassment. The top five responses were:

1. “In any work environment, taking claims of sexual harassment seriously and educating employees about what is inappropriate behavior and why it is inappropriate. Creating a work environment where employees feel supported and mutual respect is not only expected, but rewarded.”

2. “Hold leaders accountable to the policies, standards and laws no matter the level of the perpetrator.”

3. “Gain top level support for this initiative.”

4. “Getting CEI and leadership committed to zero tolerance to sexual harassment.”

5. “Sexual harassment is not an issue for HR to solve on its own, it’s a problem that must be acknowledged and addressed by the entire organization.”

Though Human Resource officers and managers must be ready to take an honest look at their anti-harassment and anti-discrimination programs and be prepared to take them to the next level, the entire organization must be brought along for the change.

HR has been criticized about its role being considered a “do nothing” department, or worse – being complicit in protecting harassers that are deemed key employees or good producers. Management and HR will have to adopt programs where prompt and effective response to allegations is the rule.

In addition to training or re-training staff and management, employers and their HR departments will need to adopt direct response and investigation practices. For larger organizations the HR department demographics should reflect the workforce in order to understand and respond to the differing circumstances of the discrimination or harassment.

Implement, train, communicate and review the different avenues for reporting harassment so the organization knows what is working and what needs fixing.

ASE Resources

ASE can help. ASE members are reminded that their membership provides access to a wealth of research, policy, and education resources to shore up an organization’s anti-discrimination programs. Members can utilize our HR hotline, CCH HRAnswersNow, or the McLean and Company resources.  We also offer our Harassment Prevention class throughout the year in Livonia, or it can be brought on-site for your organization.  Our next class is March 28.  To schedule an on-site class, please contact Linda Yesh McMaster at [email protected] or 248-223-8002.

Sources: Dykema Labor & Employment Blog 12/13/2017 by Corey Wheaton. CCH - Research shows preventing sexual harassment in the workplace will become a c-suite priority in 2018 — SURVEY RESULTS,(Dec. 14, 2017); Employment Law Lookout Seyfarth Shaw Preventing #MeToo in the Workplace: How Employers Talk the Talk And Walk the Walk 12/15/17