June 2, 2020

When an employer receives a complaint of sexual harassment or learns of harassment, conducting a proper investigation is critical.  Once an investigation is completed (and even while the investigation is ongoing), proper remedial action must be taken.

What is proper remedial action?
Proper remedial action can, and should, be directed toward the alleged harasser and the alleged victim.  The point to remember is that an employer must take real, significant action, and not just pay lip service to the idea of correcting the situation.

Remedial action toward the victim can be initiated as soon as an employer receives a complaint of harassment or learns about harassment.  If the victim and harasser are working in close proximity to each other, separating them should be your first priority.  While an investigation is being conducted, the victim should not be forced to work with his or her accused harasser.  Along a similar vein, if the victim and the harasser are not presently working together, do not initiate any job transfers which would force them to work together!  Additionally, the employer should not insist that the victim “confront” the harasser.  (If the victim requests a meeting with the harasser and with human resources or management present, that is different.)

This raises the obvious (but frequently disregarded) point that an employer should not retaliate against the victim in any way.  In other words, do not engage in any adverse job action against the victim.  Do not demote the victim, do not terminate her/him, do not reduce this/her salary, etc.

If, after a prompt and thorough investigation, the employer finds that sexual harassment has indeed occurred, the victim “must be made whole.” [Eskridge Law’s article titled “Investigating Sexual Harassment Complaints” can be read by clicking the link below.] An employer can assist the victim by offering to pay his/her expenses for counseling sessions.  (In fact, if the employer provides medical insurance to its employees, insurance may cover part of the counseling costs, resulting in only a nominal cost to the employer for the counseling sessions.) If the victim has incurred any expenses due to the harassment (such as having used sick or vacation days), the employer should offer to reinstate those sick/vacation days.  Similarly, if the victim already has paid for counseling sessions, the employer should compensate the victim for those costs.

Investigation of Sexual Harassment Complaints

Proper remedial action includes responses directed toward the harasser as well.  For instance, the employer can give a meaningful verbal and/or written warning to the harasser.  Additionally, the employer can mandate additional anti-harassment counseling or send the harasser to an appropriate seminar.  A suspension without pay is also an option.  If the harasser had been disciplined earlier, but his/her sexual harassment did not cease, then more severe discipline is required.  In certain cases, certainly termination might be warranted.

The employer has an obligation to inform the complainant/victim as to the findings of the investigation, the disciplinary action taken against the harasser, what preventive measures will be instituted to prevent future sexual harassment, and proposed future disciplinary action to be taken if the conduct continues.

There are things employers can do (and in fact, are legally obligated to do) to help minimize an employer’s chance of being faced with a sexual harassment complaint.  California Government Code section 12940(k) requires an employer to take all reasonable steps necessary to prevent harassment and discrimination from occurring.  This begins by not only having proper sexual harassment training, policies, practices, and procedures in place, but also by taking action.  Employer must implementing them and of course, conduct a quick, thorough, and confidential (to the extent possible) investigation.  All of this will help send a clear message to your employees that sexual harassment will not be condoned, encouraged, tolerated, sanctioned, or ratified in the workplace.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.