Now that the company knows about the situation it needs to move quickly to rectify it. It needs to investigate and terminate the male employee who has been making the comments.
Sexual harassment is a form of gender discrimination. There are two theories under which an employee may recover for sexual harassment. The first, "quid pro quo" harassment, occurs when any employee offers any job benefit, or threatens any job detriment, in exchange for sexual favors. In lay terms, this means that any time an employee promises, either expressly or impliedly, that career advancement may be linked to dating or sex, the law has been violated. However, unless the harasser is a supervisory employee, the Company would not be liable unless it knew of the harassment, or should have known (CALIFORNIA SEXUAL HARASSMENT (http://www.californiadiscriminationlaw.com/California-Sexual-Harassment-Law.html)."
Because she made the complaint, the company did know. In addition the company has talked to her co-workers and been made aware that it is a true and accurate complaint, therefore the company would be remiss legally if it did not take action and instead tried to terminate the female on the basis she is not liked by her co-workers.
The best thing to do in this case is to terminate the male who has been making the comments. The fact that she is a flirt has no bearing on how this should be handled. She has a right to decide who to be friendly with even though she risks the reverse occurring and someone suing because of her actions. She does not have to put up with being harassed by a male on the job. Once the company deals with this situation it can then begin to make a case to terminate her for the problems that she causes outside of this particular scenario.
The termination of the female cannot take place immediately following the disciplining of the harassing male as it will appear to be retaliation which is illegal. To avoid a wrongful termination suit the company needs to document every infraction this female commits and any failure to perform her job duties so that a termination plan can be implemented.
This is a separate issue from the harassment situation which must be handled immediately.
One of the most liable sexual harassment situations in the workplace today involves the members of upper management cohorting or harassing those in subordinate positions (Sexual harassment (http://www3.uakron.edu/lawrev/robert1.html).
Ever since the Monica Lewinski, President Clinton affair came to light, focus on those in power taking advantage of underlings have moved to the forefront. With this focus being highlighted in recent years, this particular case is volatile.
The fact that the assistant and the manager had an affair in the past sounds like a good defense for the company, but in reality it is not. It will have no bearing because the affair was over with when he began to harass her.
This may prove costly because these risks have substantially increased in recent years. In 1991, Congress amended Title VII to permit victims of sexual harassment to recover damages (including punitive damages) under federal law.9 Moreover, in 1993 the U.S. Supreme Court broadened the reach of this law by making it easier to prove injury.10 as a result, sexual harassment in the workplace presents a clear and present danger to businesses. They must now act or face increasing risk of liability (Sexual harassment (http://www3.uakron.edu/lawrev/robert1.html)."
The fact that this supervisor is making comments to the assistant that implies he wants more than a working relationship, such as getting angry because she won't go out to dinner with him, lays the foundation for a suit for sexual harassment.
Although men face harassment, women are the most likely victims. Harm caused by sexual harassment is often extreme, including humiliation, loss of dignity, psychological (and sometimes physical) injury, and damage to professional reputation and career.26 Inevitably, the victims face a choice between their work and their self-esteem. Sometimes, they face a choice between their jobs and their own safety (Sexual harassment (http://www3.uakron.edu/lawrev/robert1.html)."
In this particular case the courts may rule that the harassment was not actually sexual in nature, but was still harassment.
In 1986, the U.S. Supreme Court, in Meritor Savings Bank v. Vinson,57 endorsed the notion of a hostile work environment.58 Placing strong emphasis on EEOC guidelines, the Court held such sexual misconduct constitutes prohibited sexual harassment, even if it is not linked directly to the grant or denial of an economic quid pro quo, where "such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment (Sexual harassment (http://www3.uakron.edu/lawrev/robert1.html)."
In this particular case the work environment was made extremely hostile through the anger of the former lover who was still her acting boss. He would attack the quality and quantity of her work, make her work longer hours and do other things that were obvious retaliations for the fact that she would no longer sleep with him.
The company's potential liability has to do with the fact that he never complained about her work performance until she rebuffed him.
It could have been handled differently by having her transferred to another department when the affair ended. This would alleviate the close contact the two of them had each day and would remove his ability to harass her.
Morgan Hill City Council discusses city employee affair investigation (http://www.freelancenews.com/news/contentview.asp?c=114667)
Sexual harassment http://www3.uakron.edu/lawrev/robert1.html
Morgan Hill City Council discusses city employee affair investigation http://www.freelancenews.com/news/contentview.asp?c=114667
Friday, July 09, 2004
By Carol Holzgrafe staff writer
While the law is very clear about sexual harassment reporting when it comes to what should be done once it happens, it is less clear when it comes to who should report and what types of things need to be reported.
In the case of the bank compliance officer, there are several issues that are pertinent to the case. One issue is whether or not she is duty bound to report what she saw. Previous cases have shown that not reporting actual witnessed harassment can and does cause liability issues for all involved, however in this case it is about a cartoon being sent from one person to another (Where is the common knowledge? Empirical support for requiring expert testimony in sexual harassment trials. Stanford Law Review; 1/1/1999; Shestowsky, Donna).
The cartoon is explicit though the compliance officer has no way of knowing if either party is offended by it being sent or if they have a mutual agreement that such things are acceptable.
The compliance officer is not duty bound to report seeing such activity from a sexual harassment standpoint, but she may be in trouble because she did not report the fact that personal things are being sent using company equipment.
Because it is not part of her job description the bank may have a difficult time proving she was duty bound to report.
Now for the liability issues for the bank. Because the case about the cartoon would be weak it could appear that the firing was actually retaliation for the hesitance to comply with and assist in the dovetailing paperwork to meet compliance requirements (Where is the common knowledge? Empirical support for requiring expert testimony in sexual harassment trials. Stanford Law Review; 1/1/1999; Shestowsky, Donna).
The terminated compliance officer could claim that because others who were in management positions knew about such material being sent in the past and nothing was done about it, she believed it was acceptable to send such things.
She might also claim that the termination was not actually about the cartoon but retaliation for her refusal to help when the federal compliance officer showed up.
The company can use her position to claim that it was right to fire her. As a compliance officer she has a duty to check the bank for compliance to policies, and though her actual capacity was about loans, the fact that she saw something that broke the law as well as company policy, she was duty bound to report it.
Where is the common knowledge? Empirical support for requiring expert testimony in sexual harassment trials.