Law: Limit your liability on harassment suits

Iowa employers have a legal duty to maintain a workplace that is free of sexual harassment. It also makes good business sense for employers to do this because employers that allow sexual harassment to occur in the workplace may pay a high price in poor employee morale, low productivity and lawsuits.

Several weeks ago, a company doing business in Iowa found this out the hard way. A federal jury in Des Moines awarded nearly $12 million to an Indianola woman, from a toy company called Manley Toys. The woman, a customer service representative, claimed that her former supervisor and a co-worker subjected her to graphic sexual comments and other harassment.

According to her complaint, for over a year she was subjected to a barrage of physical and verbal sexual harassment, including pelvic thrusts in her direction, grabbing at her breast and buttocks, heavy breathing in her ear, derogatory name-calling and sexually provocative comments on a daily or sometimes hourly basis. (Other conduct and comments alleged in the complaint cannot be repeated in this article.)

The plaintiff claimed that she repeatedly told her supervisor and co-worker to stop their behavior, which they not only ignored but allegedly responded with comments such as 'Tell it to someone who cares” and 'Who are they going to tell” - referring to the fact that corporate headquarters was located in Hong Kong. She alleges she was fired in retaliation for complaining.

So what are the lessons learned in this case - other than the obvious don't inappropriately touch others at work?

First, adopt a clear sexual harassment policy for your workplace, and enforce it: You must state in no uncertain terms that you will not tolerate sexual harassment, that you will discipline or fire any wrongdoers, set forth easy to understand procedures for filing sexual harassment complaints, state that you will fully investigate any complaints you receive and state that you will not tolerate retaliation against anyone who complains about sexual harassment or participates in a harassment investigation.

Second, at least once a year train your employees and supervisors about sexual harassment and harassment generally. Remember, your harassment policy should prohibit all forms of harassment based on gender, age, sexual orientation, national origin and other protected classes.

This yearly training not only will serve as a good reminder for your employees and supervisors that you take the issue seriously, but you'll also be able to tell any jury or judge about your good faith efforts to prevent harassment and educate employees.

Finally, monitor your workplace and take all complaints seriously. Do you overhear or see any offensive conduct?

Even if it is just 'joking,” do not permit it to continue. If someone complains, act immediately to investigate it, if not the same day than within a day or two of the complaint being made.

Consider whether you should immediately separate the alleged harasser and victim or even whether the alleged harasser should be suspended with pay until the investigation has been completed. The employer should use a neutral third party to investigate the claim (that is, someone in human resources or even an outside lawyer, depending on conflicts of interest).

And if the complaint turns out to be valid, act swiftly and effectively.

Courts often state they do not want to second-guess management, and do not sit as a 'super personnel department,” and that the employer is merely legally bound to use a remedy that most reasonable people would view as likely to end the harassment. Thus, a written warning, remedial training and/or transfer to another shift can be effective in certain situations.

However, in cases involving touching or graphic sexual comments, termination of the offender is the most effective remedy.

Employers who have established complaint and investigation procedures may still find themselves named in a sexual harassment lawsuit. However, by having a policy, training employees on it and carrying out the investigation and remedy with due diligence, an employer may limit its potential liability.

' Wilford H. Stone is with Lynch Dallas Attorneys at Law.