“Sexual Harassment – How To Avoid Litigation.”

Luxury Homes and Estates in Florida

There has been an explosion of employee lawsuits concerning sexual harassment. If you want to improve your chances of defending such a case you must be proactive.

First, there is no liability for circumstances of which you have no knowledge. The employee must provide you notice of the harassment. Once you receive notice of the claim, either oral or written, you must respond immediately. You should create a notebook or file to document every phase of the process. Please call upon the alleged victim to fully explain all the reasons, facts and incidents which that person deems harassment. Please understand that your mission should be to write an exhaustive statement.

Recently, I was involved in the initial meeting scheduled after receipt of a sexual harassment claim. I hired a stenographer, had the alleged victim sworn, interviewed the victim, and transcribed the entire meeting.

The reasons for doing so were to two fold: (1) I wanted a complete statement, under oath, from the party alleging harassment; and (2) I wanted to make sure that the story did not change or was embellished after the employee visited an attorney.

Second, request all documents, e-mails, notes, letters, cards or diaries saved by the victim pertaining to the harassment. You may be surprised to learn that your employees keep diaries. Diaries are often a tool recommended by attorneys cultivating potential harassment claims. By asking the question you can get an affirmative “no” and therefore avoid the specter that a diary will be subsequently fabricated.

Please write a letter to the alleged victim asking for all documentation or confirming that no documents exist.

Third, react openly, honestly and with sensitivity to the complaint. Often-times innocuous statements or comments are perceived as harassment. Validating the person’s concern and preventing uncomfortable future statements can avoid claims.

Fourth, conduct an investigation and question the alleged perpetrator. Again, exhaust the alleged perpetrator’s response to each of the alleged incidences of sexual harassment. Let the perpetrator know that a claim has been presented.

Instruct the perpetrator that there can be no retaliation for the claim. Also instruct the perpetrator to cease all offensive activities and unnecessary communication with the alleged victim.

Solicit the names of other employees, vendors or customers who have witnessed the alleged harassment. Interview the witnesses and document their memories with regard to the alleged events.

Fifth, after completing your investigation the management of the company must weigh the truth of the allegations. Write down limitations and controls designed to curtail the offensive behavior of the alleged perpetrator. Next, let the alleged victim know of the actions that you have taken.

The victim should be told in writing to contact you in the event further harassment does occur. Any future reports of harassment must likewise be investigated.

The management team must determine whether or not the alleged harassment is real and/or whether modifications in behavior can be achieved to avoid future harassment in the workplace. Each case is unique and must be decided in a rational way.

Management cannot afford to ignore reported harassment. If harassment continues after it has been reported and management has done nothing to ameliorate the situation the employee’s claims are ripe for litigation.

Employers should have written policies concerning sexual harassment. The policy should provide clear reporting instructions to any employee who feels that they have been a victim. An employee must be able to report to someone other than their immediate supervisor because often-times harassment occurs to subordinate employees.

In conclusion, it is suggested that each employer exhaust the victim of all facts supporting the claim. The company must investigate the complaint including, but not limited to, confronting the perpetrator. The company must take corrective action in order to avoid future incidents of sexual harassment. The company must monitor the situation to determine that its actions have been successful.

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Houston Short grew up in the Central Florida area, and continues to reside in Orlando with his family. He provides representation in arbitration actions for the American Arbitration Association and engages in alternative dispute resolutions including mediation both binding and non-binding arbitration, and settlement negotiations. He is an active member of the American Arbitration Association Panel Review Committee, the Orange County Bar Association, and the Florida Bar. He graduated from Florida State University in 1984 with a bachelors of science degree (cum laude) and received his juris doctor from the University of Florida in 1987 (with honors). Houston co-authored, "The Constitutionality of the Legislatures Mandate to Sever Counterclaims in Mortgage Foreclosure Action," the Real Property, Probate and Trust Law Section, The Florida Bar.