Every employer needs a written Sexual Harassment Policy.
It can be a stand-alone document or part of the employee handbook.
The policy must state that the employer complies with federal, state and local law; briefly describe those laws; clearly define to whom the policy applies; provide some examples of prohibited conduct; describe how sexual harassment complaints will be handled; and expressly state that retaliation for making a complaint will not be tolerated.
While there are many topics we could drill down on related to Sexual Harassment Policies (hint, you are likely to see more posts on this topic in the future), the focus of this post is the last point listed — a statement that retaliation will not be tolerated.
The number of retaliation claims filed in federal and state court is on the rise. Employees can prevail on retaliation claims even if they lose the harassment claim. Retaliation claims protect employees from adverse employment actions stemming from complaints about harassment.
In the real world, retaliation can be obvious — such as when a manager terminates an employee immediately after the employee files a sexual harassment complaint (and has no good reason to do so). But, it can be subtle, such as when a person in line for a promotion is passed over months or even years after having made a sexual harassment complaint.
Whether the employer has engaged in retaliatory conduct will typically come down to a factual dispute between the employee and witnesses who work for the employer.
For example, in Foster v. University of Maryland—Eastern Shore, a former campus police officer sued the University of Maryland—Eastern Shore for hostile work environment (sexual harassment), gender-based termination, and retaliation. The trial court dismissed the claims without a trial; but, the Fourth Circuit reversed on the retaliation claim and let it go to trial.
The University had taken several steps in response to the employee’s harassment complaints. It conducted an investigation, removed the offender from his supervisory role, required him to take sexual harassment training, and required him to sign a “Last Chance Agreement,” putting him on notice that he would be immediately fired upon any further violation of University policy. The court determined that these steps were sufficient for the University to avoid the claim for hostile work environment.
But, while the University was putting these measures into place, the employee complained to Human Resources that she was being retaliated against for complaining about the sexual harassment.
The employee claimed that her probationary period was extended in retaliation, and that the University changed her schedule without notice. She also claimed she was denied tuition remission and that she was denied a request for light duty following an injury. And if these were not enough, she also claimed she was barred from attending a training session while she was on leave for an injury. She claimed that all of these actions were taken because she had filed a sexual harassment complaint.
She was fired less than one month after the last complaint about retaliation.
The University said she was terminated because she was an “unacceptable fit” for the position of police officer because she complained too often about perceived retaliation.
The court determined that the University handled the sexual harassment claim well, but fell down on the retaliation claim.
The wording of a written policy certainly won’t solve every problem, but the odds of facing a retaliation claim decrease if managers and HR personnel are taught how to identify and avoid retaliatory conduct.
To help avoid retaliation accusations, the Sexual Harassment Policy should contain a statement that the employer will not engage in or tolerate any retaliatory conduct that stems from sexual harassment complaints. Do not include a provision stating that employees who make unfounded claims for sexual harassment may be subject to discipline. This type of language may be interpreted as discouraging the filing of valid complaints, and, in practice, opens the door for retaliation claims.
The statement can appear either in its own section of the Sexual Harassment Policy or in the section of the policy discussing how investigations will be conducted.
The anti-retaliation statement should be explained to supervisors. The employer should make sure that supervisors and managers understand what retaliatory conduct is and the risks it creates.
In addition to a well-written policy that prohibits retaliation, employers should conduct training sessions for decision-makers and supervisors so they understand the various types of conduct that have been viewed as retaliatory by courts. Astrachan Gunst Thomas can help by writing policies or handbooks, conducting trainings, and providing counseling. Call Elizabeth Harlan at 410-783-3528 for more information.
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