March 22, 2009

Noticing Jane Lala inappropriately touching male employees and Jack Roving talking to other female employees dripping with sexual innuendos?  Hearing about yet another affair involving the secretary and a senior manager?

If you are questioning whether this is normal behavior for the workplace… let me help you with the answer… no! If you think this is normal behavior for your place of employment, then you should be concerned and should do something about it. If you are an employee seeing this behavior, you owe it to your employer and co-workers to report it.  If you are the employer, continue reading below to learn how to prevent sexual harassment lawsuits.

What? I’m getting sued?  Many businesses do not try to figure out how to prevent lawsuits until one is filed against them.  Businesses would save significant attorneys’ fees, if they implement certain measures with the guidance of an experienced employment lawyer to make sure their company is safeguarded.

All eyes are watching you.  Businesses may prevent sexual harassment lawsuits by making sure that they have well-written employee handbooks and follow the procedures therein. While this may seem like common sense, businesses have a tendency to forgo their policies and hope, instead, that no one will notice. But, all eyes are watching you– the business owner– to see what your response will be. In addition, businesses should proactively identify inappropriate conduct that is going on and prevent it by counseling the harasser to stop the behavior otherwise he or she may be subject to disciplinary action.

A recent Florida federal case brought against Publix Supermarkets, Inc. (”Publix”) demonstrates why a carefully worded employee handbook and an employer following the procedures set forth therein may save an employer from a lawsuit that is replete with strong allegations of sexual harassment. The Southern District Court of Florida recently found Publix as the prevailing party in a sexual harassment action brought by a former employee, Lauren Scott, even though the plaintiff’s allegations of a hostile work environment were seemingly strong and convincing. Publix successfully defended the sexual harassment claim because Ms. Scott did not put Publix on notice of the sexual harassment by following the procedures set forth in its sexual harassment policy. Scott v. Publix Supermarkets, No. 07-60624-CIV, 2008 WL 2940672 *1 (S.D. Fla., July 28, 2008).

So, what should I do? In light of the Scott decision, businesses should consider doing the following to prevent sexual harassment lawsuits in Florida.

1. Implement a tightly worded sexual harassment policy with detailed procedures.  Sexual harassment may more likely occur in a workplace where the employer is apathetic toward its employees.

If an employer has a carefully worded sexual harassment policy, then an employee must follow the policy to put his or her employer on notice. Employers should make sure their policies include alternative contact persons just in case one of the contact persons is the alleged harasser. In addition, once placed on notice of a complaint of sexual harassment, employers must comply with their policies. An employer complying with its own policy may reduce its exposure to liability even in light of what seems like a severe claim of sexual harassment.

2. Do not ignore what’s happening right under your nose.

Like stagnant pools of water breeding unhealthy bacteria and mosquitoes, a workplace that does not improve because issues are being ignored causes an unhealthy work environment where negative and unlawful behavior escalates without control.

Let’s talk frankly. There are businesses where most employees, including supervisors, know that there is behavior going on that is sexually inappropriate but do nothing. Employers may ignore what is going on because the harasser may be in a position of authority, popular, or both. Employees may be fearful of being a “tattle-tale.”

Ignorance, however, is not bliss. Employer apathy may create hostility among employees, deteriorate employees’ trust in their employer to control the workplace, and expose the employer to liability as unlawful conduct escalates.  Be mindful of potential retaliation claims as they investigate employees’ complaints of unlawful conduct and determine the appropriate employment action to take.


3. Prevent retaliation claims by your employee.

Your business could win on a sexual harassment claim, but still lose on a retaliation claim. In Scott, although the trial court dismissed the sexual harassment claim, it did not dismiss the retaliation claim because there were enough questionable facts surrounding Publix’s response to Ms. Scott’s complaints that required the retaliation claim to continue to trial. Even if an employer can prove that there is no truth behind the sexual harassment claim, an employee can win on a retaliation claim if the employer engages in an adverse employment action against the complaining employee because of his or her complaint of sexual harassment. Employers should be mindful of potential retaliation claims as they investigate employees’ complaints of unlawful conduct and determine the appropriate employment action to take.

Remember, your employee should not be treated as the enemy. Your employee complaining of difficulties in the workplace, whether substantiated or not, is his or her right. When an employee makes a complaint, assure the employee that he or she is being heard.

Through the process of employees’ complaints, employers get a chance to see what is really happening at the workplace and do something about it.  If, however, an employer does nothing to change the workplace positively, then an employer is exposing itself to liability and employee unhappiness. The power to improve the workplace rests in the employer’s hands.

Action steps for businesses:

1. Tighten sexual harassment policy;
2. Pay close attention to what is happening in the workplace;
3. Immediately improve negative issues in the work environment;
4. Treat complaining employees with respect; and
5. Do not take an employment action against an employee because of his or her complaint of unlawful harassment unless there is evidence that the employee intentionally made misrepresentations in his or her complaint.

Author:  Christina A. Varghese, Esq., Chair of Labor and Employment Law Department, Rutherford Mulhall, P.A.  For more information on Rutherford Mulhall, P.A., please visit www.rmlawyer.com or email cvarghese@rmlawyer.com.

This blog does not constitute legal advice.  We encourage you to find legal counsel in your jurisdiction for further representation.