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Prompt HR Investigation Into Harassment Cases Key: Employer Liability


Prompt HR Investigation Into Harassment Cases Key Employer LiabilityIn a previous article, “The Risk of Third-Party Sexual Harassment of Employees”, we discussed the potential exposure employers face regarding employee allegations of harassment by non-employees. We spoke of the need for organizations to investigate such incidents immediately in addition to taking prompt corrective action to help stem lawsuits. Regardless of the source of the sexual harassment – whether by a supervisor, co-worker or third-party (customer, vendor, etc.), prompt HR investigation into these allegations is a deciding factor as to whether an employer will be found liable of such charges.

Recently a case in Tennessee underscored how the actions of an employer can play a key role in determining liability. The Tennessee case involved a woman who sued her employer for a hostile work environment due to sexual harassment. She alleged that a co-worker harassed her on two occasions, and secretly recorded portions of both incidents. These recordings indeed proved that inappropriate comments were made to the woman, incriminating her co-worker. The woman, however, waited to report the allegations and didn’t share the recordings with her employer until after filing a lawsuit.

Upon being notified of the situation and prior to any legal action, the HR director asked for all the details of the incidents in writing, and held separate interviews with both parties to try to determine what happened. The co-worker denied the allegations and without the woman’s recordings there was no solid evidence of the harassment. The employer concluded its investigation, found conflicting evidence, and issued a final written warning to the co-worker. In addition, HR told the co-worker that he was no longer allowed to have any contact with the woman and restricted his access to the office (where the alleged incidents had occurred). The woman later resigned and sued her employer for hostile work environment and constructive discharge. She didn’t reveal the recordings until after her resignation.

The Tennessee Court of Appeals dismissed the employee’s claims, emphasizing that the employer acted promptly and objectively reasonably in response to the sexual harassment complaint. “In the end, [the employer] cannot be faulted for failing to analyze incriminating evidence that was never made available to it prior to [employee’s] decision to leave the company.”

The employer, according to the court, took immediate action, initiating an investigation and placing restrictions on contact between the two employees, which showed that the employer did not knowingly permit intolerable conditions. Moreover, the employer had preventative measures in place, further strengthening its case, including providing employees with an anti-harassment policy at the beginning of employment, required online training on sexual harassment annually, and the sexual harassment policy’s requirement of employees to immediately inform the employer of any conduct believed to constitute harassment.

As you can see, appropriate harassment policies and a prompt and reasonable investigation into a harassment complaint will go a long way toward helping an employer avoid liability. What also goes a long way in these types of cases is a solid Employment Practices Liability Insurance (EPLI) program to provide defense coverage and indemnity in the event you are found liable in an workplace-related incident involving discrimination, harassment, wrongful termination, etc. Axis Insurance Services specializes in EPLI coverage and can provide you with a program that is suited to your company or organization. Just give us a call at (877) 787-5258.

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Blogged on: August 24, 2015 by Mike Smith
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