URMMA
Serving Utah Muncipalities

Investigating Claims of Sexual Harassment

Question 1

A male supervisor has previously been romantically involved with a female assistant who he supervises.  Several weeks after the two have broken up, the supervisor asks the assistant to meet him at a local hotel after work so that they can engage in sex. The assistant agrees to do so, meets him that evening after work and they go to a hotel and have sex. The assistant comes to you three weeks later and states that she would like to make a complaint of sexual harassment based on the incident.  You should:

A. Tell the assistant that it would be inappropriate for you to take her compliant, because the city is not involved since the incident happened after work and she voluntarily met the supervisor at the hotel.
B. Take the complaint.
C. Tell the assistant that the sexual conduct clearly was voluntary and not unwanted, and terminate both the superintendent and the assistant.
D. Terminate both the superintendent and the assistant and then revise your Employee Handbook to prohibit employees from having romantic relationships with co-workers.
E. None of the above.

ANSWER: B

COMMENTS:
 This question illustrates a common theme in sexual harassment cases:  a previously consensual relationship ends but one of the participants continues to expect sexual or other favors from the second participant.  This question also underscores the advisability of having a policy that prohibits romantic relationships between supervisors and subordinates and/or requires that management be notified of the beginning and end of any such relationships. Employee/employee relationships also create problems in the sexual harassment context. Other things to consider are the following:

(1)  An employer can be liable for incidents that occur off work premises, particularly where a supervisor is involved.

(2)  An employer can be liable even though the victim’s actions appear to be “voluntary”. The key question is whether the actions are “welcomed” by the victim.  This distinction frequently comes into play when a subordinate contends she needed to keep her job and felt she would be terminated if she did not comply with the supervisor’s demands.  She will then content that although she may have participated “voluntarily”, the alleged harassor’s actions were nevertheless “unwelcome.” The United States Supreme Court has stated that “welcomeness” is the applicable standard.

(3)  It is unwise to terminate the assistant based simply on the fact of a prior relationship.

Question 2

Of the following individuals, who is the most reasonable choice to conduct a sexual harassment investigation?

A. City Attorney
B. City Personnel Director
C. Outside attorney who will litigate the case if a lawsuit arises
D. Supervisor in charge of the department where the harassment occurred
E. City employee who has investigated numerous sexual harassment complaints and who has a 100% record of finding that there was no harassment.

ANSWER:  B

COMMENTS:
The most reasonable person to conduct the investigation is the city’s Personnel Director.  A problem arises when either the City Attorney or the city’s regular litigators conduct the investigation, since the city may want to use the investigation as a defense and the attorney/client privilege would likely be waived in that situation.  Also, if the investigation is used as a defense or becomes an issue in the litigation, the city’s regular litigators would likely be precluded from representing the city in the litigation, since they might be necessary witnesses.

If the city uses the supervisor in the department where the harassment occurred as an investigator, there may well be charges of bias, particularly if the alleged harassor is the supervisor’s friend or pal.  Another concern would be that the alleged victim might claim that she did not report the harassment because she believed the supervisor would not take her seriously.

Finally, an investigator who has never found sexual harassment will be an easy target for plaintiff’s attorneys; it is very unlikely that there was never something valid in all of those complaints.

QUESTION 3

When should the city destroy the file on an alleged harassment incident?

A. When the alleged victim leaves the city’s employ
B. When the alleged harassor leaves the city’s employ
C. When both the alleged victim and the alleged harassor have left the city’s employ
D. Seven years after the last complaint against the alleged harassor
E. Never

ANSWER: E

COMMENTS:
Retain the investigative files indefinitely. The city should not destroy the file when the alleged victim leaves because the city should be keeping track of the alleged harassor, whether or not the particular charge was found credible.  The city should not destroy the files when the alleged harassor leaves because it should be treating similarly situated individuals in a similar fashion with regard to discipline. In addition, it is likely that in any sexual harassment litigation a plaintiff will request information on previous complaints, and the city should be able to show that it has handled those consistently, competently and fairly.

QUESTION 4

You received a note from an employee who claims he has been sexually harassed. The note contains the name of the alleged harassor, details of the alleged incident, and the names of witnesses who witnessed the incident including the name of one witness who has seen other incidents of harassment against other employees by the same accused person.  Who do you interview first?

A. The complainant.
B. The alleged harassor.
C. The witness who has seen other incidents of harassment.

ANSWER:  A

QUESTION 5

A female employee tells you her male supervisor has repeatedly asked her out and that today he placed his hand on her buttocks.  She tells you she does not want to make a complaint and does not want you to do anything, but would just like you to know. You should:

A. Honor her request, but make a note of her complaint and request in your day planner.
B. Honor her request, but place a note about her complaint in the male supervisor’s file.
C. Determine that this does not amount to sexual harassment as defined by the city’s policies and then do nothing more.
D. Ask her to provide you with a written report of the incident.
E. B & C
F. None of the above.

ANSWER:  D

COMMENTS:
Ask the employee to provide you with a written report, and then conduct an investigation.  A common theme in employment cases is that the employee reports harassment and asks that nothing be done. When the employer does nothing, the employee may later claim that she did want something done and was ignored. She may also be reluctant to report any future harassment since no action was taken when problems were first reported.  Get it in writing.  Do not trust what an employee tells you she wants done now---that will likely change once she has seen an attorney.

Most important however, an employer has a legal obligation to promptly correct sexual harassment.  The employer has no idea what else the alleged harassor may be doing and this report may be the tip of the iceberg.  The employer’s goal should be that the workplace is a non-threatening and comfortable place in which to work, and it is unacceptable to allow inappropriate sexual conduct to go on simply because someone has asked the employer not to do anything.

As an added note, supervisors are often reluctant to confront an alleged harassor. However, taking action at the first report of inappropriate sexual conduct may actually save the alleged harassor’s job.  The alleged harassor may be unaware that his/her conduct is disturbing to some people, or escalate by ignoring it may well result in the alleged harassor’s termination.

QUESTION 6

On her last day of work, a sixteen-year old female lifeguard tells you that a sixteen-year old male lifeguard had placed his hand down the front of her swimsuit a couple of weeks earlier. The male lifeguard is the son of the city’s police chief.  You should:

A. Do nothing because the city cannot be liable for the actions of a minor.
B. Do nothing because this is the female employee’s last day at work, so you cannot prevent any future incidents with regard to her.
C. Do nothing because the male lifeguard is a temporary employee.
D. Refer the matter to the police chief.
E. A & C
F. None of the above.

ANSWER:  F

COMMENTS:
 An employer can be liable under Title VII for the actions of a minor, and temporary employees are just as protected by Title VII as regular employees. It is also foolish to ignore a report of inappropriate sexual conduct on grounds that it is the employee’s last day of work.  The employer should conduct an investigation and determine whether the alleged harassor has acted inappropriately toward not just this employee, but other employees as well.  The fact that the male lifeguard is the son of the city’s Chief of Police should have no bearing on the way this matter is handled, assuming that the Police Chief is not a witness and the swimming pool is not part of his supervisory responsibility.  The male lifeguard should be treated the same way as any other employee who is the subject of a complaint, and the city should avoid any appearance that the Police Chief has any influence on the investigation.

QUESTION 7

While driving to a seminar with one of your male employees, he regales you with stories of the sexually related comments that another male employee has been making about a female employee.  You glean from his remarks that the female employee is never present when these comments are made, that the remarks are never made when females or non-employees are present, and that all employees who are present laugh about the comments.  You should:

A. Do nothing because this is not a “report” of sexual harassment.
B. Do nothing because females were never present during the offensive remarks.
C. Conduct an investigation.
D. Ask the male employee to tell his co-worker to stop making the comments.
E. A, B & D.
F. None of the above.

ANSWER:  C

COMMENTS:

Formal or not, the employer has had a “report” of potential harassment.  If true, the conduct is inappropriate and those who participated in it should be disciplined in some way.  It is irrelevant whether or not females were present during the remarks, or that everyone laughed at the remarks.

QUESTION 8

A sexual harassment policy should contain which of the following provisions:

A. A requirement that the complainant ask the alleged harassor to stop.
B. A detailed list of every type of conduct that might be sexual harassment.
C. A list of types of sexual harassment from least offensive to most offensive, with a procedure to follow for each type.
D. A statement that complaints of sexual harassment that turn out to be false will result in discipline of the complainant.
E. A & D.
F. All of the above.
G. None of the above.

ANSWER:  G

COMMENTS:

Never require that the alleged victim handle the issue herself and essentially act as the first line of defense by asking the alleged harassor to stop. It is the employer’s responsibility to deal with harassment in the workplace, and requiring the victim to deal with the alleged harassor simply opens the door to problems.

Moreover, it is impossible to list every type of conduct that might be construed as sexual harassment.  Prohibit inappropriate sexual conduct, give a few examples, and state the list is not exclusive. Also, ranking types of sexual conduct by seriousness (and including how to respond to each) is asking for trouble.  Simply prohibit inappropriate sexual conduct, make reporting mandatory, conduct an investigation, and mete out discipline as appropriate.

QUESTION 9

True or false:

1.     Employers cannot be liable for sexual harassment by an employee under the age of 18.
2.     An employee who reports sexual harassment should be moved to a different department, with no decrease in pay, while the investigation is being conducted.
3.     An employment policy can require that complaints of sexual harassment be made in good faith.
4.     An employment policy cannot require that complaints of sexual harassment be made within a specified time frame.
5.     An employee policy can require that all complaints be made in writing on a form provided by the employer.
6.     A complainant is justified in refusing to cooperate with a sexual harassment investigation when the refusal is based upon the advice of his or her attorney.
7.     Documentation of complaints of sexual harassment should be retained for seven years from the date of the complaint and then destroyed.

1. F;  2. F;   3. T;   4. F;   5. T;   6. F;  7. F.