Sexual Har. Claim

clevahn

I need everyone's opinion on this one. I will try to make a long story short so here goes...

Female inside sales rep. has attendance issues and has been given coaching and verbal warning. She uses her last day of PTO and calls in sick which according to co. policy exceeds attendance requirements. Her manager calls her at home informing her of this and also asks her to bring in a doctor's note which is a requirement when calling in sick after exceeding attendance requirements. She gets angry and tells the manager she has no reason to stay in the area. Her kids live in another state with their father and her parents live in yet another state. She tells the manager she is quitting. Mgr. asks the employee to stop by to pick up her personal belonging and to go over paperwork with HR. Employee tells manager she does not want to come in.

Employee calls me two days later and tells me she is coming in to get her personal belongings and to go over paperwork. When she arrives I go over her benefit info. and ask her to sign a letter of resignation so that I have something in writing. She asks me if she will be able to collect unemployment and I tell her that it is not likelly since she quit. She then tells me that she refuses to sign the resignation letter because she is on her way to her lawyer to press sexual harassment charges against her manager and the company. When I ask her on what grounds, she tells me about a trade show she attended with him and another manager a month ago where she claims he tried to kiss her in a cab on the way to dinner. I asked her why she never brought the claim forward until now and she said she does not like confrontation and thought it would blow over. She then storms out of my office with the threat that I will be hearing from her attorney.

What is everyone's opinion here? I did a thorough investigation and find no grounds for her claim.

LindaS

My understanding of this type of situation, and I am NOT an attorney, is that the EE has a responsibility to bring the situation to the company's attention first and if the company fails to act in an appropriate manner, then she can go ahead and seek whatever additional avenues are open to her. Her failure to bring this situation to the attention of the company and provide them an opportunity to investigate it and follow whatever policies are in place will not bode well for her with a reputable attorney.

Her reasons for choosing to terminate (and I would make sure you received documentation on the conversation) gave you no indication that the reason(s) had anything to do with harassment. While I would make sure you contacted your legal counsel for verification, I don't see where she would be able to file a successful harassment claim against your company.

One last thought after she brought this situation to your attention, what was your response to her? Did you complete a thorough investigation?

PAhr

Whether she likes confrontation or not, she had a responsability to notify the company of the harassment before she can honestly expect that anything could have been done about it. Sure, it may be a royal pain in the bu!! for the next few months but the end result is going to be that your company is not responsible for things it had no knowledge of, whether the accusations were true or not.

deniseE

Unless, of course, the EE can demonstrate that she believed that some relatiation would occur if she spoke up about the "kiss".

This boils down to a he said/she said...and you'll have to make sure your ducks are in a row. If you have not yet begun an investigation, I would do so. Sometimes the amount of effort put forth by the employer makes the difference in a verdict (should it come to that).

Good Luck!!!

JM in ATL

All you can do now is make sure that you have investigated these charges, and have itall well documented.

After that it is a wait and see game. Will she actually go to a lawyer and will he/she actually say that she has basis for a claim?

I've had employees tell me that they were going to file suit against the company before and I never hear a word. I usually end up having to fight an unemployment hearing for a few months, but in the end, they don't win.

Just be sure that you are ready. Have her attendance records, have your policy stating your attendance, and document your final conversation with her. I would also send her certified mail a letter confirming her resignation and that she refused to sign the resignation. Of course, since she is threatening a law suit, I would definitely contact your lawyer for the best course of action.

If you lawyer knows about this ahead of time he/she could prepare in the event that a suit is filed against your company.

Whatever

If she doesn't want confrontation, then, why at the initial phone call did she initiate one?

rad

A few thoughts... I agree with the other posts that you need to do your investigation and advise your counsel that she brought this up. However, I do not think she has a valid claim based upon one kiss. While a stupid thing to do on the part of the manager, I do not think it was severe and pervasive behavior if it was one single kiss-attempt, she did not claim that it was a quid pro quo situation , and if she didn't mention it to anyone, there is no basis for her to claim that her discipline was retaliatory. So although I find his behavior unprofessional, I do not see a pattern of harassment here.

Crout

She's gonna do what she's gonna do. Make sure that you do a thorough investigation, document her actions and wait it out. Most likely she is simply angry and it will come to nothing, but you need to be prepared. In the future you may want to consider a neutral stance when an employee asks about Unemployment. It looks like your response to her question is what set her off and possibly kept her from signing the letter of resignation. When I'm asked, all I ever say is that I supply the appropriate documentation to the UC office and then it's their decision to award benefits or not. One of the misconceptions that employees seem to have is that companies can "block" Unemployment at will. Not true....how I wish, but not true.

Joe HR

I have a couple of questions regarding your dilema.
Your EE stated that there was another manager on the trip. Was the other manager in the cab when this incident allegedly took place? If so, then that manager should be able to relate what transpired. You said you did a thorough investigation, so I assume you spoke with the other manager.
Also, have there been any previous incidents involving this manager with other employees in the company? If the EE can show a trend of harassment by this manager, then she can probably make a case based upon the fact that the company should have known what type of manager he was and already have taken action to correct his behavior. Did you talk to other female employees in the company to see if there were any other incidents that went unreported?
If the answer to my second question is no, then you may have a pretty good defense, provided you have good documentation from you investigation and it was a thorough investigation. I have seen cases where companies have used this as a defense and prevailed in the long run.
Good Luck

WOCO Frank

Joe stole my thunder. Do not... I repeat, do not get blindsided by anything in the accused manager's past. Senior management needs to know that if there is anything they know about this guy, they'd better share it with you pronto. I've been through a few of these, and the only one that turned out badly involved a VP whose history of inappropriate behavior was legendary in the executive suite, but unknown to us. In depositions, he actually bragged that there must be something wrong with his accuser, because a "couple dozen" other female employees hadn't minded kissing him. I wasn't in charge of that investigation, thankfully.

clevahn

I did talk with the other manager on the trip but he was not in the cab when the alleged kiss took place. He was with the two of them at the trade show the following day and said that she acted completely normal and neither of them acted strange or uncomfortable. I've talked to the "offending" manager several times, he denies the allegations. He did make one intersting comment though. About two weeks before this employee quit, she asked this manager to lie about her compensation on a form she needed to turn into an attorney regarding child support/spousal support. The manager refused to do something so unethical. I have talked with the other females in the company - no problems there.

marc

One of the things to look at is whether the attendance issues, verbal warnings and coachings took place before or after the alleged kiss attempt. An attorney might try to draw some connection between the events if it took place after the attempt. Did any other employees witness of have knowledge regarding the fraud attempt to misreport income? That could come into play in your favor.

gillian2

Her not reporting it first doesn't get you off the hook because there are a number of reasons why people don't report. You do need to do an investigation. If that turns out to be inconclusive, or you flat out don't believe her, document the investigation (not that you don't believe her, of course) then go on with life. If there is a lawsuit, the outcome will revolve around credibility - yours and hers, and the circumstances that lead to her claim to you won't come across as very credible. If the manager, however, has had past problems he loses credibility, as does the company if they knew about them and didn't do anything about it.

sandra_d

It sounds by your original post and your follow-ups that her allegations might be false. If so, it's unfortunate that an innocent person will be pulled through the mud if she does pursue the attorney route.

I'm not an attorney, and so perhaps am not interpreting the law correctly, but it seems that I've heard that the Farragher & Ellerth (spelling??) decisions a few years ago mean that, if it is a supervisor guilty of the harassment/discrimination, regardless of mitigating circumstances, the employer has no position to fall back on - they have strict liability for the situation. Therefore, the fact that she didn't report it right away doesn't necessarily protect the company.

Here's hoping it was all a bunch of bull...

mwild31

Certain employees love nothing better than to make threats - so you're going to have to sit on this one until the threat turns into reality. It sounds like you did the right thing with the investigation - document everything - make sure this manager who was accused has a clean record and wait.

One thing that struck me about some of the posts is I wonder if there is an assumption that your company does indeed have a strong sexual harassment policy which outlines reporting requirements that allows the employee to talk to someone else BESIDES their manager or immediate supervisor - namely HR? And, is this policy posted and well understood by all the employees? If the policy is known & better yet, she signed some training materials or policy statement, if she goes through with the threat, your attorney's may have to exchange letters/mediation, but hopefully not go to a jury. Make sure your attorney is aware of the threat - the cost of 1 billable hour, may set your mind at ease & give you insight into the process and what remedial action can be taken now.

System

LEGALLY
SHE HAS NO LEGS TO STAND ON.
THE COURT WILL RULE IN YOUR FAVOR STATING THAT YOU (THE COMPANY) WAS NEVER GIVEN A CHANCE TO INVESTIGATE OR REMEDY THE SITUATION.
SHE HAS THE BRAINS OF A DOORKNOB.

System

Not necessarily. And why are you SCREAMING LIKE PORK?

marc

She may not have a case, but if all she wanted was to take a parting shot, she has effectively eaten up a bunch of company time already with perhaps more to come. If that is the only revenge she gets, breathe a sigh and move on.

SMace

I believe as the others do that her response was a threat that will not be acted upon. Something that I don't think anyone else has mentioned is you need to be sure you have a written harassment policy with detailed reporting procedures that has been distributed to your employees, that they have been trained on it and you have documentation that they have been trained. Without those items she could easily say, "I didn't even know there was a policy and I didn't know who and how to complain." Ideally you should train ee's in orientation and annually.

blw

Only if it is quid pro quo harassment does the company have no defense. In Ellerth & Farragher, looking at hostile work environment harassment, the courts said that if a company has a published policy that employees ARE AWARE OF and complaints are investigated and acted upon, the company is not held liable when a claim is not reported according to policy.

SMace

[font size="1" color="#FF0000"]LAST EDITED ON 09-26-03 AT 09:04AM (CST)[/font][p]
blw,
What does "AWARE OF" mean for you?

San Francisco

I believe both cases, Burlington vs. Ellerth and Faragher vs. City of Boca Raton basically said that the employer may mount a defense and limit their liability by having a written policy, ensuring each employee know the policy, enforces the policy and does not allow retaliation and therefore show that the employee did failed to take advantage of the process. The employer will always be held liable.

Elizabeth