There is no rule of thumb on employment sexual harassment

Employment sexual harassment is illegal under New Hampshire and federal law. All employee claims of sexual harassment need to be taken seriously and employers would be making a huge mistake to make a broad application of principles related to sexual harassment. For example, employment sexual harassment can occur when the accused and the accuser are of the same sex or the accuser is a male and the accused is a female. While much of employment sexual harassment is perpetrated by men against women, there are situations in which a man sexually harasses another man, a woman sexually harasses another woman, or a woman sexually harasses a man. Further, employment sexual harassment can also occur by a customer against an employee. In all the foregoing circumstances, management should not apply a “rule of thumb” to determine whether the claim more or less credible.

Proper investigations should be made; the extent of which depends on the circumstances. At times, it may be appropriate for the company to hire an outside human resource specialist to conduct an independent investigation. For example, if there is an allegation that a manager is attempting to solicit sexual favors from a subordinate, the company after consulting with employment counsel, may determine it is best to have an independent investigation done. However, if an employee complains that the male co-worker in the next cubical next is making her uncomfortable asking about her romantic life outside of the workplace, and upon being confronted with that accusation by the human resource manager, the male co-worker says he was just trying to be friendly, it may be prudent for the human resource manager to remind him of the sexual harassment policy and tell him to stop the inquiries. A written warning may be appropriate as well.

Looking into people’s motives is important, but again, making a generalized view as to when people are credible under circumstances would be inappropriate. For example, there are situations upon which an employee knowing that her job performance is inadequate will make a false sexual harassment allegation. However, there are also situations where a male co-worker, knowing his female co-worker’s job performance is subpar, targets that co-worker with sexual harassment because the harasser believes the she has little choice but to put up with it. There is no substitute for a proper investigation speaking with the accused, accuser, and witnesses as well as looking at any relevant hard copy or electronic documents.

If the investigation reveals there was sexual harassment, not all sexual harassment is alike and the remedy should fit the misconduct. In some circumstances, a remedy might be instituted with the input of the person harassed. For example, if a socially awkward co-worker thinks his persistence in trying to romantically win over his female co-worker will endear him to her, that can lead to a level of sexual harassment. He may believe her rebuffing him asking for a date is playing hard to get. She may not want him fired, but she just wants him to treat her professionally and not as a potential romantic partner. In that circumstance, her input as to the remedy can be very beneficial to both her, the company, and her clueless male co-worker. The human resource manager can warn the male co-worker about how to treat her and other co-workers with respect and remind him that retaliation against her will not be tolerated. Thereafter, a written warning in his file after the meeting may suffice. However, if a co-worker is emailing or texting unwelcome, vulgar jokes or pictures to a co-worker, the human resource manager may determine that even though the harassed recipient merely wants the inappropriate action to stop, further disciplinary action is required. Simply put, specific facts matter in all employment sexual harassment claims and taking short cuts based upon perceived rules of thumb do not comply with the obligation of the employer to properly investigate sexual harassment claims and, when appropriate, formulate a remedy.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.

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