The #MeToo movement has changed the framework for companies faced with sexual harassment claims. The revelations of 2017 have unleashed a flood of internal and external complaints of sexual harassment and sexual hostile work environments. Companies need to develop new rapid-response reflexes. In particular, when faced with a credible allegation, an employer's first move should generally be to engage an outside investigator with impartial bona fides.
At present, when faced with a harassment allegation, too many employers either rush to judgment, terminating the accused harasser without due process, or more often are slow to react, continuing to handle such complaints internally in their human resources unit, keeping the problem confidential.
Neither course reduces the employer's liability risk. A quick firing can lead to a wrongful termination suit. A quiet internal process does little to convince employees that the employer is seriously committed to addressing sexual harassment in the workplace. Perceptions to the contrary lead to more allegations and more suits.
Because of the enhanced awareness of the problem in the public’s eye, it is more important than ever to take steps to prevent large awards of punitive damages should the matter be tried successfully in court. Federal, state and local laws generally provide that if an employer has a procedure or policy for receiving and investigating complaints of sexual or racial discrimination, and it takes prompt and remedial action, such action may constitute all or part of a valid defense to the complaint. Further, if an outside expert investigates the matter and the recommendation of the investigator is followed, punitive damages, available under discrimination laws, will generally not be awarded since the actions cannot be deemed to be willful disregard of the law, which is the basis for punitive awards.
Retaining an outside investigator who proves to be impartial, and whose recommended remedial action is shared with both the accused and the accuser, not only protects against punitive damages but sends a powerful message to employees that complaining to the employer is the solution to a problem and there is no need to go to the Equal Employment Opportunity Commission or court. Reports I have received after conducting such an investigation demonstrate that a positive change in morale is often the result.
Dona S. Kahn is of counsel in the New York office of Anderson Kill and is a member of the firm’s Labor and Employment group. An experienced trial lawyer, she has tried more than 30 employment jury trials in courts nationwide, representing major companies and universities in cases primarily involving discrimination, harassment and retaliation claims. She also has extensive experience investigating complaints of discrimination against companies, universities and non-profits. Reach her at email@example.com or (212) 278-1812.
Published June 12, 2018.