Subcontrator's employee claim of Sexual Harassment

MaryBurgos · January 2002

My question is the following, we have a subcontractor's employee claiming sexual harassment from one of our employee. This employee (subcontractor) has filed a stress claim due to sexual harassment caused by one of our employee.
The employee (subcontractor's) has filed a worker's compensation claim, but has names one of our employee's in this claim, how much liability do we have with this. The employee (subcontractor) is claiming two incidents of sexual harassment.

Incidents:

1. The employee(subcontractor)is claiming that she heard our employee stating to another employee on our premises that he has slept with her.

2. The employee (subcontractor) is also claiming that she was approached by our employee ( the same individual) again on our premises, offering to finish a partial drawing of a tatoo she has on her back waistline. Tatoo was partially finished according to the claimant.

I have already started an investigation, taking statements from anyone who witnessed or heard anything including the claimant.

How much exposure or liability do we have with this claim. The employee (subcontractor) has also contacted an attorney who is handing the workers compensation claim.

Any advise you can furnish on this matter will be greatly appreciated. ASAP
Thank You.

Down_the_Middle · January 2002

It's too early to speculate on your liability until after you've discovered all the facts. Once you've interviewed the accuser, accused and relevant witnesses, you'll be in a better position to know your liability. More importantly, you'll then know whether any type of S-H has occurred and it's severity. Your subcontractor also has a role in this investigation unless you're going to act on its behalf. Due to the multiple parties involved, be careful to maintain the highest level of confidentiality possible and of course, document your findings.
Neither of these allegations (if isolated and non-pervasive) may rise to a S-H issue, but that's the purpose of the investigation. Kudo's on the fact that you're responding to the allegation...........you'll minimize any risk by handling this quickly and thoroughly.

KarenL · January 2002

You are doing the right thing by investigating the cited incidents. If there were only the two incidents I wonder about her "stress" claim. Neither sound very threatening. I have found in sexual harassment investigations/claims that by thoroughly investigating and going through your in-house grievance resolution program the situation can be resolved. I have never had a case go to court, although there have been many "claims." Because the claimant is a sub-contractor's employee the supervisors or others who may have witnessed this might not have known who to report to.

Sexual harassment has to be more than one or two incidents to be actionable unless the incident/s were extreme. However, if her workers' comp claim is based on emotional distress, you may have some exposure there (or your comp insurance carrier does).

My advice is to do a thorough investigation. If you find through your investigation that the employees who were the alleged perpetrators were in the wrong, make some sort of good faith effort to make restitution to the claimant (in exchange for a signed release). Sometimes all someone wants is an apology and reassignment.

Good luck.

Gar · January 2002

[font size="1" color="#FF0000"]LAST EDITED ON 01-04-02 AT 04:01PM (CST)[/font][p]I agree with the previous respondents. By all means, continue your investigation and ascertain the facts. However, although the allegations are indicative of inappropriate, boorish or immature behavior that's obviously unwelcomed, I ("a reasonable person") would be suprised if the alleged conduct turns out to be sexual harassment as we HR veterans know it to be.

Theresa Gegen TX · January 2002

Depending on the facts, if the employee files a charge of discrimination with the EEOC, your company could be held to be a "joint employer", even if this person works for the subcontractor. So what you are doing (treating just like an employee complained is the right thing to do).

Good Luck

Gillian · January 2002

Ditto to the above, but more. Those of us in California must comply with the Fair Employment and Housing Act (the state eeo regs), which includes "a person providing services pursuant to a contract" as being protected against discrimination, including harassment. The liability is the same. The goverment code section is 12940(j)(1).

Blanche · January 2002

You are absolutely heading in the right direction, but I have just a small piece of advice to offer (having managed a similar situation). The complainant here is not your employee, so you need to be a little careful about your procedural approach to the investigation. It may be best to allow the subcontractor/employer to conduct the fact-finding interview with the claimant, with you in attendance as an observer. From there, you can go on to investigate her claims by speaking to the alleged harasser and the individuals from your company she names as witnessess. I also recommend partnering with your subcontractor to develop a plan that clearly defines the escalation/grievance path for subcontracting employees assigned to your work site, and make sure the subcontracting employees AND your supervisors know what it is.

Mutagawa · January 2002

I agree that the interview with the claimant should be handled by her employer (the subcontractor). The person conducting that interview should provide you with documentation that you can use to follow-up with the alleged harasser and any witnesses.

Subcontrator's employee claim of Sexual Harassment

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