HANDLING SEXUAL HARASSMENT MATTERS: COMMON MISTAKES

by James W. Wimberly Jr.

Sexual harassment charges and litigation are increasing. Moreover, the cost of sexual harassment is rising, especially to the careless employer. For example, in one recent case, a jury returned a verdict for $69,000 in compensatory damages and $8 million in punitive damages to one employee who filed sexual harassment charges against the company.

According to the newspapers, the case arose when a former employee went to a local attorney seeking his help in obtaining unemployment insurance, believing she had quit for good cause and thus was entitled to unemployment. The unemployment proceeding led to a lawsuit for sexual harassment. In preparing the harassment case for trial, the plaintiff took the deposition of the supervisor accused of sexually harassing the plaintiff. The supervisor allegedly told two sexual jokes during the deposition. During trial, the supervisor was asked if he would tell those jokes to his mother or sister, and if he thought the women working for him were any less deserving of the level of respect he would show to family members.

Such cases, as well as many other well-publicized cases, should be a "wake-up" call to all employers. It is submitted that the following are among the most common mistakes made by employers in such matters.

  1. Not having a well-publicized written harassment policy and complaint procedure.
  2. Not taking sexual harassment complaints seriously.
  3. Not getting a clear understanding, perhaps in writing, of the specifics of the complaint and the complainant's desired remedy.
  4. Not conducting a prompt interview with the accused, specifically warning the accused against retaliation toward the accuser.
  5. Not adequately determining the independent witnesses or independent evidence and reviewing same.
  6. Not reaching a prompt credibility determination as to what happened, based upon the preponderance of the evidence, even if there are no independent witnesses.
  7. Not taking prompt and effective remedial action designed to end the harassment, including reasonable discipline should any harassment be determined to have occurred, and documenting same in the appropriate investigatory and personnel files.
  8. Not informing the accused and the accuser of the results of the harassment investigation. Many well-prepared companies do this notification in writing.
  9. Not following up periodically with the complainant to ensure that there are no additional problems.
  10. Not training supervisors on the employer's sexual harassment policies and procedures, and documenting such training.

Jim Wimberly is a principal in the national management labor law firm of Wimberly & Lawson P.C., headquartered in Atlanta, GA, with regional offices in Tennessee, Florida and California.

He is a Phi Beta Kappa graduate of the University of Georgia and holds the Doctor of Jurisprudence degree from the University of Georgia School of Law. He also holds the Master of Laws degree from Harvard Law School and has done graduate work in labor relations at the Georgetown Law Center. He formerly held the positions of General Attorney, Office of the Solicitor, U.S. Department of Labor, and Professor of Labor Law at the Woodrow Wilson College of Law. He is a member of the Labor Law Sections of the American, Georgia, and Atlanta Bar Associations.

Jim is engaged exclusively in representing management in labor relations. He serves as employment law counsel to a number of trade associations, including the American Apparel Manufacturers Association and the American Apparel Contractors Association. He recently authored the second edition of the Georgia Employment Law Book, and is one of less than 1 percent of practicing attorneys selected for listing in the publication, The Best Lawyers in America. Jim also previously served as a member of the advisory board to Commerce Clearing House's labor relations publications.

Comments can be sent to Wimberly at wimlaw@aol.com, or visit the firm's Web site at http://www.contilaw.com/w&lhome.html