When Will They Learn?
I have been doing this a long time. Every once in a while, in a moment of idealism,I start to believe that maybe, just maybe, every employer in the country is starting to get a clue when it comes to issues of sexual harassment. Then I read an article like this one posted at Firehouse.com entitled “New Mexico Firefighter: Station was Like a Sex Brothel” (click here to read the article). Perhaps what is most disconcerting about this article is that the victim’s supervisors acknowledged they “heard rumors about porn and alleged sexual harassment” of the victim but took no action. Let me be clear on this. I know it sounds like a no-brainer, but where there is smoke there is usually fire — (pun intended). One would think that management would at least question the alleged victim about these rumors rather than waiting for her to report and hire a lawyer.
Let’s just give some thought to what could have occurred if the employer took the time to ask the alleged victim about rumors that came to their attention.
The victim could have confirmed that she was being sexually harassed. In that case, the employer would have conducted an investigation and learned all the facts. By being proactive the employer could have, through its action, confirmed to the alleged victim that it took matters of harassment and discrimination seriously and, quite possibly, avoided lawyer involvement and a lawsuit. An early investigation may also have led to the discovery of defenses to her claim and, in a worst-case scenario, allowed the employer to minimize its financial exposure and negative publicity.
What if the employer contacted the alleged victim and she denied being sexually harassed? Well, hopefully, the human resources representative would have kept a record of the discussion and provided the alleged victim with a copy of their harassment and discrimination policy, as well as, their reporting policy. Then if a claim arose at a later date, the following may have happened in the context of a deposition:
Attorney: You were contacted by Mr. X, the human resources representative, on January 14, 2006, is that right?
Alleged Victim: Yes.
Attorney: At that time the HR person told you that there was a concern that you may have been the victim of sexual harassment or inappropriate conduct, is that right?
Alleged Victim: Yes
Attorney: In response, you told the HR person that you were not being sexually harassed, is that right?
Alleged Victim: Yes.
Attorney: You also told him that you were not exposed to any conduct in the workplace that was inappropriate, isn’t that correct?
Alleged Victim: Yes.
Attorney: At the conclusion of the meeting you were provided copies of the company harassment and discrimination policy and the policy on reporting harassment and discrimination, right?
Alleged Victim: Yes
Attorney: You signed this receipt acknowledging that these policies were given to you?
Alleged Victim: Yes.
Attorney: You were also told that you could always contact the HR representative, or anyone, in the HR office, if you felt you were the victim of sexual harassment, right?
Alleged Victim: I don’t remember….maybe.
Attorney: So if the HR representative were to testify he was always available if you wanted to talk, you would not disagree with that.
Alleged Victim: I guess not.
OK, before I get emails from cynics, let’s take that question head-on. What if the person denied being contacted by the HR person? Well, you still have the HR person’s testimony, their contemporaneous record of the interview and the document acknowledging receipt of company policies. That still puts the company in a better position than it would be if it ignored the problem.
I just have one question for employers like this fire department. To quote Dr. Phil, “How’s that workin’ for ya’?”