Ways Employer Responses to a Worker's Complaint of Sexual Harassment Can Impact Employer Liability

Recently, the Sloan Management Review from MIT’s Sloan School of Management looked at workplace sexual harassment. Specifically, the piece delved into the numerous ways employers can mishandle a credible allegation of harassment (which can, in turn, harm the harassment victim even more.) The law of workplace sexual harassment in New York imposes several obligations upon employers. If your employer did not meet its legal obligations, it may render your employer liable to you. A knowledgeable New York sexual harassment lawyer can provide essential analysis and advice about your case and help you maximize your chances of an appropriate recovery.

One way that an employer can fail to respond properly, according to the article, is through inaction. If an employee complains of sexual harassment and the employer dismisses the complaint out of hand, that may permit the harassed employee to pursue liability against the employer.

Too often, employers decide that the behavior that triggered the complaint did not occur because of sex and decline to investigate. The Sloan article cites a federal case from here in New York City where that scenario allegedly occurred. The alleged harasser was a senior economics professor at an Ivy League business school. The professor, according to the junior professor who was his subordinate, used the completion of research the pair was undertaking (and that the junior professor needed for tenure) as a tool to force her to be “nicer” to him.

The junior professor complained, but the dean of the business school allegedly told her that there was nothing the school could do about the “soap opera” between the two professors.

Your employer also can be liable if you bring harassment to their attention and they do an inadequate investigation. There are a variety of ways that your employer’s investigation can fall short of what’s required. If the employer unreasonably delays starting the investigation, or if the employer starts promptly but takes an unreasonably long time to conclude its investigation, those timelines may provide a factual basis for a claim that the employer was not serious about its legal obligations regarding sexual harassment and is liable based on its conduct of a sham investigation.

Another set of facts that may help a harassment victim’s case against her employer occurs after the investigation. If the employer investigates promptly and thoroughly, and finds proof of harassment, but then fails to discipline the harasser, that may point to employer liability. 

The U.S. Supreme Court has stated that an employer has a duty to uproot all sexual harassment that it knows about or reasonably should know about. The court also said that employers generally are liable for workplace sexual harassment when a supervisor harasses one of his/her subordinate employees. The court, however, carved out certain defenses for employers.

One possible defense available to your employer is that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” If you have evidence that your employer failed to investigate, conducted only a sham investigation, or investigated but failed to discipline your harasser, those facts may help undermine this type of employer defense that it acted with reasonable diligence.

Finally, an employer may decide that the proper course of action is to retaliate against the worker who brought forward the sexual harassment complaint. This is illegal and potentially entitles the harassment victim to add an additional cause of action to his/her lawsuit, which is one for retaliation. Bringing a sexual harassment complaint to your employer's attention is considered to be one form of "protected activity." If your employer punishes you for engaging in protected activity, that's illegal retaliation. Keep in mind that you don't have to win your underlying claim to win a retaliation case. 

Employers may fail to take proper action following a sexual harassment complaint for a variety of reasons. Perhaps the employer considered the alleged harasser a prized employee and sought to protect him/her. Perhaps the employer sought to squelch the complaint to avoid possible bad press or a PR "black eye." Perhaps the professional or team reviewing the complaint failed to grasp the gravity of the allegation and dismissed serious harassment as a mundane office tiff. Whatever the reason, it’s possible your employer’s reasons for acting (or not acting) as it did are insufficient under the law and the employer is liable to you. Part of getting justice for sexual harassment is not only holding the harasser accountable but also holding accountable the employer who enabled that harassment. The determined New York sexual harassment attorneys at Phillips & Associates are here to help sexual harassment victims utilize the legal system to accomplish all of those ends. Contact us online or at (866) 229-9441 today to set up a free and confidential consultation.

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