An Employee Is Sexually Harassed but Doesn’t Want it Reported—NowWhat?
This scenario may be familiar: A staff member witnesses an employee being sexually harassed and reports it to management, or perhaps a manager witnesses the sexual harassment. When the witness tells the employee they are going to report the incident, the employee says they would prefer it not be reported. Whatever the employee’s reason, the employer faces a dilemma. Employers are legally required to provide their employees with safe work environments that are free of sexual harassment and are obligated to discipline any violators of the company’s anti-sexual harassment policy. In most cases, employers will conduct some form of an investigation into any allegations to determine whether further action is required. Obligation to Investigate Lack of cooperation or input from the allegedly sexually harassed individual may make it difficult to build evidence or to determine whether the conduct constitutes sexual harassment. Employers’ decisions to act in these circumstances should be based on the nature of the alleged conduct. There is no official boundary for egregious sexual harassment that must be investigated even if the alleged victim doesn’t wish to make an “official” complaint. Employers may differentiate based upon the severity of the allegations:
• If an employee allegedly gropes, makes an unwanted advance, exposes themselves, or commits quid pro quo harassment, the employer must investigate the incident regardless of whether the victim wants them to. Simply put, there is no “gray area”here. This type of conduct is too flagrant to ignore and can be a danger to other employees if permitted to continue. • On the other hand, if one employee says that a coworker made a sexual joke or crude hand gesture but doesn’t want to make a complaint on their own behalf, the employer may choose not to investigate. In instances where employers choose to pursue disciplinary action without cooperation from the allegedly sexually harassed individual, they may use the accounts of eyewitnesses, themselves included, during their investigations. Additionally, the harshness of the discipline (e.g., termination vs. suspension) is determined by the employer, not someone reporting sexual harassment. Important reminder: It is the employer’s obligation to determine whether an investigation is warranted. Those who make complaints or provide information should be assured that the employer will not tolerate any form of retaliation against them for participating in an investigation.
Legal information is not the same as legal advice. This content is offered for general informational and educational purposes only; it does not constitute legal advice or opinions. Moreover, the transmission or receipt of this information is not intended to create an attorney-client relationship between sender and receiver. If you want professional assurance that this information, and your interpretation of it, is appropriate to your particular situation, consult an attorney. ERP thanks James E. McGrath III, Esq. and Robert M.Tucker, Esq. from Putney,Twombly, Hall & Hirson LLP for contributing to this newsletter.