Interview by David Laprad
Sexual harassment is a serious matter no employer should take lightly, says Grace Danielle, a Chattanooga attorney whose practice includes handling sexual harassment cases. Danielle answered our questions that arose out of the Rafael’s case.
How could this have gone on so long?
Based on your article, there were repeated complaints from several of the women, but management ignored the problem. This could be due to the failure of the restaurant to have written policies against sexual harassment in the workplace which should be provided in the employee handbook and posted in the workplace, the failure of management personnel to be trained in the policies, or the failure of the company to enforce these policies.
Sometimes, although the company has strong policies against sexual harassment in the workplace, management ignores these policies. It takes a lot of training and emphasis by upper management on these policies to get the point across that sexual harassment will not be tolerated. Also, a lot of times, women are afraid to come forward with any complaint for fear of losing their job. I can certainly understand their concerns because often there is retaliation when a complaint is filed, and most employees, even if they have witnessed the sexual harassment, will not come forward or support the complainant for fear of losing their own jobs.
I have had witnesses tell me that it did occur, but if I subpoena them to court or for a deposition, they will lie because they have to take care of their own families and fear of losing their job. As you can imagine, most of these cases are won or lost on witness testimony. If it is only a “he said” or “she said” situation with no other witnesses, it is difficult to prove unless there have been prior documented complaints against the offender.
I receive a lot of calls concerning complaints of sexual harassment or discrimination in the workplace where the employee is afraid to report the harassment.
If the harassment is done by a co-worker, you must first give the company notice of the harassment or discrimination and give the company an opportunity to take prompt and appropriate remedial action to stop the harassment. The company is not required to fire the harasser but is required to take action which stops the harassment. If the company fails to do so, then the company is liable. There is a different standard for a manager or supervisor. If a manager or supervisor is sexually harassing an employee, then there is automatic liability for the company unless the company can show it had an effective policy or complaint system in place to address these problems and the employee failed to take advantage of it.
If someone is being sexually harassed at work, what should he or she do?
I try to emphasis the importance of reporting any such behavior immediately to the appropriate person in the company. It will only get worse if it is tolerated. If an employee feels he or she is being sexually harassed, he or she should immediately look to the employee handbook to see if there is a policy against sexual harassment and follow it to the letter. If not, they should look in the break room or other places to see if the employer has posted any information about sexual harassment in the workplace. Usually, these policies will instruct an employee to call human resources or someone else if he or she has a complaint of sexual harassment.
The employee then needs to send the complaint to the designated person in writing, sign it, date it and keep a copy of it. It is not unusual for the employer to claim it never received the complaint, so it is important to make the complaint in writing and keep a copy. If there are no policies addressing sexual harassment, the employee should still make the complaint in writing and send it to the human resources director, president, or some other high level manager with authority to address the complaint.
Also, if you see sexual harassment occurring in the work place, you should report it immediately, even if it is not happening to you. Some companies have policies that require this.
Sexual harassment affects everyone in some manner, and should not be tolerated. Do not be afraid to report it, whether it is happening to you or someone with whom you work. All employees have protection under state and federal statutes for any complaints of sexual harassment and discrimination in the workplace, and retaliation as a result of a complaint is also prohibited. But again, to ensure that you have this protection, put the complaint in writing and keep a copy.
What can an employer who’s concerned about this issue do?
All employers should have written policies against sexual harassment and other forms of discrimination in the workplace. These policies should be in the employee handbook and provided to the employee. These policies should also be posted in the break room and other places where it is visible to the employees. The employer should have annual training for all employees on the policies against sexual harassment and should provide annual training to all supervisors and managers on the proper procedures to address any complaints of sexual harassment. There are several law firms in Chattanooga that provide this training to employers and offer seminars. Also, employers should not create an environment which causes employees to be afraid of reporting these complaints for fear of retaliation.