By: Amy Epstein Gluck 

Is it Ok for a company’s Human Resources (“HR”) department to respond to said subordinate employee’s complaint of being asked to cook in the nude for her supervisor “oh that’s just the way he is”? I think not.

A Charlotte newspaper recently reported about a lawsuit filed against a company where an employee alleged that her manager repeatedly sexually harassed her, including (among other things) asking her to cook dinner for him in the nude, asked her to make out with him in storage closets or break rooms, and texted her on her personal phone at odd hours, asking if she was in the shower “because he said he loved thinking of her naked in the shower.”

I wish I was kidding about these allegations.

When the employee reported the sexual harassment to the manager’s supervisor, the complaint alleges that the supervisor said, “Oh, that’s just ___,” and that human resources was aware of similar complaints against the supervisor. The employee alleges that she was told to ignore the inappropriate comments.

The complaint alleges that the company in question took no action in response to the employee’s complaints about this manager, and the employee was eventually fired last year.

What Can We Learn

As noted here,  “A good HR office is the linchpin for an employer’s effective system for learning about harassment and then responding quickly and effectively,” said Chai Feldblum, commissioner of the Equal Employment Opportunity Commission (“EEOC”), the agency that enforces federal workplace discrimination laws, including Title VII of the Civil Rights Act of 1964 (“Title VII”).

An effective Human Resources department takes complaints of harassment very seriously—most call counsel to confirm that they are following applicable law. HR should investigate the matter thoroughly and promptly, including interviewing the alleged perpetrator, victim, and any potential witnesses. HR should recommend any corrections or remediation and work to ensure no retaliation against the complainant.

Under no circumstances should an HR department simply ignore the complaint or tell the employee who filed it to just ignore her alleged harasser.

HR should document the investigative and remediation processes extensively so that the employer has a written record of the steps the company took to investigate allegations of unlawful harassment in case, despite best efforts and intentions, the employee nonetheless files a claim with the EEOC or a state agency. This is critical.

Careful Not to Retaliate

Once an employee complains about discrimination to HR, if the employer terminates the employee, the employer may be held liable for retaliating against the employee for complaining about discrimination.

Complaints to management about unlawful workplace discrimination is “protected activity” under Title VII, which contains an anti-retaliation provision making it unlawful for an employer to subject an employee to an adverse action when that employee has opposed any practice which is an unlawful employment practice under Title VII.

The EEOC considers “opposition” to be complaining to anyone about alleged discrimination suffered by oneself or others.

Employer Takeaways

1)  Ensure your company handbook or employee manual contains a clear, no-tolerance sexual harassment policy, and ensure it is disseminated throughout your company and understood;

2)  Have a specific procedure for investigating any claims of sexual harassment and follow it, documenting the process along the way;

3)  Train your employees, HR personnel, and executives about EEO policies and laws;

4)  Encourage reporting of sexual harassment and convey that your company would not retaliate (i.e., take an adverse action) in any way against any person who reported sexual harassment; and

5) Document extensively any employee’s claim of sexual harassment or sex discrimination as well as the steps you take to stop and prevent it.

And, finally, “that’s just the way he is” is not a defense to a sexual harassment and retaliation claim.