Summer 2009For those living in the Pacific Northwest, spring and summer bring clear skies and sunny days, filled with birds singing and bees buzzing from flower to flower. It is a time of production and new opportunities. It is also a good time for employers to pull out their workplace harassment policies and to conduct training of the workforce, especially supervisors. Whatever the situation, one thing is certain: people will be working side by side in the workplace, which can be a source of potential liability for the unprepared employer. When it comes to the birds and bees in the workplace, here's how to avoid being stung.
The Basis of Enforcement
Forty-five years after the passage of the Federal Civil Rights Act of 1964 ("FCRA"), discrimination, especially sexual harassment, continues to be a significant problem. The U.S. Equal Employment Opportunity Commission ("EEOC") reported an 11 percent increase in the number of complaints filed for sexual harassment in fiscal year 2008 (13,867) vs. fiscal year 2007 (12,510).
Excluding cases that went to litigation, the EEOC recovered in excess of $47 million for persons who complained of sexual harassment in the workplace. Title VII of the FCRA covers all employers with 15 or more employees in at least 20 calendar weeks of the current or preceding calendar year. The Oregon Bureau of Labor and Industries ("BOLI") enforces state discrimination laws, including sexual harassment. An employer having even one employee is subject to Oregon law prohibiting sexual harassment in the workplace. Penalties for violations can include reinstatement with or without back pay, reimbursement of counseling or medical costs and attorney fees, compensation for pain and suffering, and punitive damages.
What to Do in Case of a Complaint
First, remain calm and assure the complainant that you take the matter seriously and will take appropriate action. Second, address complaints of workplace harassment promptly and follow your own policies. Third, consult your employment lawyer to discuss the nature of the complaint, discerning whether it is an administrative complaint filed with the EEOC or BOLI or an actual lawsuit filed in state or federal court.
If the complaint is administrative, you will be asked to submit a written response to the complaint, generally within 21 days, but you may be able to obtain an extension. You should engage your employment lawyer in this response process to minimize exposure and to negotiate with the administrative agency on your behalf. Your lawyer may conduct a fact-finding investigation to assist in the preparation of the response to the administrative complaint.
Once the response is filed, the administrative agency will conduct its own investigation and fact-finding. This process may take up to one year, and during this time you may not hear anything from the administrative agency. Do not worry — this time lag is a normal part of the process.
The administrative agency, on concluding its review, may issue a substantiated finding, unsubstantiated finding, or a declaration of no basis for continuing the investigation. If the complaint is substantiated, you will be given an opportunity to enter into a conciliation agreement, ending the matter on the payment of a sum of money to the complainant.
If there is no conciliation, then the administrative agency may pursue an administrative lawsuit or a civil lawsuit, or it may issue a right-to-sue letter to the employee, who will then institute a civil lawsuit, normally with retained counsel.
If the complaint is a lawsuit filed in state or federal court, you should advise your insurance carrier if you have employment-practices liability insurance ("EPLI"). The insurance company will provide appropriate defense counsel for the lawsuit.
If you don't have EPLI, you should contact your employment lawyer to assist you in responding to and defending the lawsuit. Do not delay in providing notice to your carrier, if applicable, or to your lawyer, because failure to respond in a timely fashion to a civil lawsuit can result in a judgment being entered against the employer.
Taking Harassment Seriously
Be proactive and vigilant in managing your workforce to ensure that the workplace is free from discrimination — especially sexual harassment.
Train your supervisors to recognize what sexual harassment is, to take reports of sexual harassment seriously, and to respond in appropriate ways if an employee complains of sexual harassment in the workplace. Be sure that you create an open and effective communication environment so that employees who are experiencing discrimination in the workplace will be comfortable coming forward and reporting it.
Then, once an incident has been reported, make sure that you take immediate and appropriate steps to investigate complaints so that you can undertake appropriate corrective action.
Consult competent employment-law counsel to assist you in developing appropriate workplace discrimination polices, training your workforce, and assisting you when you receive workplace complaints. Especially in the employment arena, an ounce of prevention is worth a pound of cure.
On the prevention topic, you should also consider purchasing EPLI, which covers businesses against worker claims that their legal rights as employees of the company have been violated. Discrimination cases are extremely expensive to defend — even if your company has not violated the law. EPLI insurance is an important protection for any business.
The proactive employer who trains and manages the workplace to be free of sexual harassment will be able to enjoy the birds singing and the bees buzzing. But the employer who fails to take it seriously ultimately will get stung.
The EEOC website, www.eeoc.gov, provides information and assistance to employers on discrimination in the workplace, including sexual harassment.
BOLI's website is a good source for employers seeking information about discrimination laws, including sexual harassment. BOLI also provides sexual harassment training around the state or at an employer's location. The BOLI website is: www.boli.state.or.us.