Iowa Corporate Lawyer & Attorney : Rush Nigut of Brick Gentry Law Firm : Serving Des Moines, Cedar Rapids, Davenport, & Sioux City

Employers have an obligation to prevent sexual and other forms of harassment in the workplace.  Unfortunately some employers are under the mistaken belief that their sexual harassment policy adequately covers them.  Here are some common mistakes I have noticed while conducting employment compliance reviews:

• The written policy against harassment doesn't include an anti-retaliation provision for those employees who report harassment.
• The written policy does not provide and communicate in writing multiple channels for the complaint procedure. Employees should be able to report harassment to more than one person within the company. The complaint process should be clearly defined in your employment manual.
• Supervisors are not trained each year and supervisors are not required to report harassing conduct.  Consequently employers often miss out on a possible defense in any lawsuit.
• Once notified of harassing conduct  employers fail to take immediate action to investigate.  Employers have the attitude that the employee must "deal with it."  Complaints of harassment are often not taken seriously.
• Offenders are not disciplined or terminated as appropriate.

Commit these mistakes at your peril.

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Read this post from Indiana lawyer Sam Hasler to find out why it is so important to respond promptly and appropriately to sexual harassment complaints. 

In the case mentioned by Sam, Chili's Grill and Bar escaped liability even though the employee established a prima facie case of harassment in her lawsuit.

Sam also has some great advice:  "Having a harassment policy is not enough. Having a that policy in an employee handbook is not enough. Having the policy and enforcing the policy is the key to success."

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The New York Knicks sexual harassment case provides some great lessons on employment law.  Previously I touched on the Knicks case in explaining how companies could avoid sexual harassment claims.  Now the case has been settled and there are additional lessons to learn.

Frank Steinberg of the New Jersey Employment Law Blog explains the importance of "fee-shifting" in employment law discrimination cases.  In these cases the loser pays the attorneys' fees of the other side.  This places a great deal of pressure on the defendants to consider settlement.  As Frank said,

It is quite possible that, depending on the cases, the fees could be greater than the damages awarded to the plaintiff.  Thus, a realistic evaluation of the likelihood of complete success should always be a part of the defense strategy and should be evaluated on a continuing basis. 

You should always consider business strategies for litigation.  I encourage you to approach litigation dispassionately and consider the best business approach to ending your dispute.  Sometimes the best business approach means litigation is necessary but only after you have carefully evaluated all aspects of your case to determine how to prevail, or at the very least, extract yourself from the litigation under the most favorable settlement terms.

Or, if you got your brains beat in like the Knicks did settlement is never a bad option.

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A federal court jury in New York says Isiah Thomas and the New York Knicks are liable for the sexual harassment of a former female executive.  The jury found the former employee was subjected to unwanted sexual advances and verbal insults.  A retaliation claim also was alleged.  While Isiah Thomas still maintains his innocence and vows an appeal,  the jury has spoken.  The Verdict:  the Knicks and its owner owe nearly $12 million in damages.  (Thomas escaped punitive damages but his employer was not so lucky).

Could the harassment lawsuit have been avoided?  

Employers have an obligation to prevent sexual and other forms of harassment in the workplace.  At times employees will screw up but an employer must be prepared.  Some ways to avoid harassment claims include the following:

• Have a written policy against harassment which should include an anti-retaliation provision for those employees who report harassment.
• Provide and communicate in writing multiple channels for your complaint procedure. Employees should be able to report harassment to more than one person within the company.  The complaint process should be clearly defined in your employment manual.
• Make sure you train supervisors each year and require supervisors to report harassing conduct.
• Once notified of harassing conduct - take immediate action to investigate fully.
• Do not retaliate against employees that make a complaint.
• Discipline or terminate the offender as appropriate.

Michael Moore of the Pennsylvania Employment Law Blog has a great post on this issue and the particular problems created by complaints by high level executives.

The executive absolutely cannot have any direct or indirect control over the investigation.  Claims involving the company's CEO may require HR to go directly to the board of directors to protect the company.  Obviously, such action puts HR in an impossible position, so consider using outside counsel to manage the situation.

It is never easy dealing with claims of this nature but do not sweep it under the rug just because a high level employee is involved.  The stakes are high and you must follow your written policies and take the complaints seriously.  Ignore the behavior or retaliate at your peril.

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