false sexual harrassment charges

I have a question about sexual harrassment. If one is accused of sexually harrassing someone in the workplace,
is the supervisor that fielded the complaint legally obligated to confront the accused and let them know what
action of theirs caused the complaint?

I have a situation in my workplace in which an employee was told by their supervisor that they had 5 counts of
sexual harrassment against them, and if there was one more, they'd be fired. No more information was offered
to the accused. Not knowing what they did wrong, the accused walked on eggshells for another two weeks,
until they were told that count six had been filed, and the accused was fired, still unaware of what they had
done wrong. How can a person accused of sexual harrassment correct their actions if they don't know what
they are doing wrong?

I am very confused on this issue an would very much appreciate it if you could find the time to write a very
brief response to my question, and perhaps a source where I can find more documentation on any existing
procedures for dealing with these types of accusations.

Thank you so much,
R. Zilinski

1 answer  |  asked May 24, 2001 8:17 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Handling a Harasser

As an employment lawyer, I am more likely than not to represent women (and it is usually women)who have been subjected to sexual harassment. Thus, I generally have very little sympathy for the usually male harasser. However, over the years, I have come to realize that there are precious few employers who know how to effectively deal with a sexual harassment situation. My feeling is that, if employers had handled the situation responsibility from the start, I wouldn't be in court with them. My experience also tells me that fewer than all sexual harassment claims are genuine.

Employers have an obligation to address, and where needed, remedy complaints of sexual harassment. They don't have a legal obligation to confront the harasser with the details of the harassment complaint, although, in my opinion, if they did so more often they would actually have less of a problem with sexual harassment complaints.

Because of the publicity some verdicts in sexual harassment cases have received, employers have sought advise from management law firms on how to deal with sexual harassment complaints. Although the advise these firms give may be grounded in the law, the advise more often than not shows very little knowledge of how workplaces function and how people interact. What management firms do is serve up something that looks simple and effective, but which is too often simple-minded and useless. They basically tell employers to adopt elaborate, cookie-cutter procedures. (For God-sake, there are computer programs which will prepare such a procedure for you at a cost of a few hundred dollars.) The result of setting up these procedures is often either one of two things: anything the person making the complaint says is held to be gospel; or anything the person against whom the complaint is made says is held to be gospel. As a result, complaints are too often either ignored, or overblown. Either way, typical management practices lead to abuse. Either the complainants are abused, or the accuseds are abused. The underlying workplace problem really is never addressed. The underlying problem might be sexual harassment, but not necessarily. However, whenever there is a sexual harassment complaint, there is a workplace problem of some kind. And that problem needs to addressed not so much from a legal standpoint, but from a human relations standpoint.

To make matters worse, management firms also advise employers not to give either the complainant or the accused any details about what the employer is doing about the complaint, and not to let the complainant and accused talk to one another. I think this advise has more to do with a fear by management firms that anything that the employer might say or do may later be used against the employer in a trial. That may well happen, but, in guarding against this fear, management firms are robbing employers of tools needed to effectively resolve problems in the workplace. To me, the advise is penny wise and dollar foolish.

Employer themselves also have to share the fault for ineffective practiices, although the failing is understandable. Employers give responsibility for dealing with sexual harassment complaints to the wrong people. They tend to give them either to managers or human resources people. The problem with giving these problems to managers is that managers don't have the time, even assuming they have the knowledge, to deal with the problem. These managers are too busy dealing with their regular areas of responsibility. As a result, the sexual harassment complaints get a low priority.

The situation with human resources departments is surprisingly similar. HR people tend to get consumed by problems having to do with health insurance, pensions and other benefits. They too have little time to deal with harassment issues, and also tend to give these issues a low priority.

Although very few employers now do this, it seems to me that the only way for an employer to deal effectively with harassment issues is to have a department devoted to only to handling discrimination complaints, something that only very large employers would be able to do. An alternative might be to have an outside firm actually handle these complaints. The idea, either way, is to get someone to deal with the problem who will give the problem a priority.

Although these opinions have less to do with legal requirements, and more to do with being practical, in my opinion, if an employer is to effectively and fairly deal with sexual harassment or other types of discrimination complaints, the employer has to first stop playing "CYA." Employers need to deal with harassment and discrimination problems more like production problems. In other words, they need to own up to the problems and look for solutions.

Rather than restrict the exchange of information among the various parties, employers need to increase communications. Rather than separate the complainant and accused, I believe the wiser course is actually to get them to sit down and talk to one another, in a controlled, safe environment, perhaps with an outsider, such as a mediator. The earlier this is done, the better in the long run.

The situation you describe sounds to me to be a situation where the employer is following stock management firm advise. The employer was told to document the complaints. They were also told to investigate, but I doubt that the investigation involved more than talking to the complainant and maybe one other person, and then only breifly. Once the complaints reach a certain number (usually two or three), terminate the accused. It is very simple advise, but I have a feeling that the underlying problem has never been identified, let alone addressed. The complainant may not yet be through with her complaints. She may just end up accusing someone new. If not this, then the accused will go someplace else and harass someone new.

Is the employer legally justified in what it did? Yes, definitely. Will it really deal with its sexual harassment problem? Maybe. Maybe not.

posted by David M. Lira  |  May 25, 2001 10:45 AM [EST]

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