He Said, She Said

by Richard A. Russo
Davis & Campbell LLC

Investigating and handling uncorroborated allegations of hostile environment sexual harassment

Sexual harassment is defined as “unwelcome advances or other verbal or physical conduct of a sexual nature.” Because sexual attraction may often play a role in the day-to-day social exchange between employees, the distinctions among invited, uninvited-but-welcome, offensive-but-tolerated, and flatly-rejected sexual advances may be difficult to discern.

Hostile environment sexual harassment exists when the sexual conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. Hostile environment sexual harassment is prohibited by Title VII of the federal Civil Rights Act of 1964 (Title VII) and the state Illinois Human Rights Act (IHRA).

Employer Liability
An employer’s liability for hostile environment sexual harassment is dependent on whether the sexual harassment was perpetrated by a supervisor or a co-worker, and whether the sexual harassment claim is pursued under Title VII or the IHRA.

Under Title VII, an employer is vicariously liable for hostile environment sexual harassment perpetrated by a supervisor, unless the employer can show that: (1) It exercised reasonable care to prevent and promptly correct the sexually harassing behavior; and (2) The complaining employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

Unfortunately for employers, despite exercising reasonable care to prevent and promptly correct sexual harassment, under the IHRA, employers are strictly vicariously liable for sexual harassment carried out by a supervisor.

However, when hostile environment sexual harassment is perpetrated by non-supervisory coworkers of the complaining employee, an employer is only liable if the employer knew or should have known of the harassment and failed to take appropriate corrective measures. This is true under both Title VII and the IHRA.

Importance of Employer Investigations
Promptly investigating hostile environment sexual harassment allegations and taking immediate and successful corrective action to resolve employee complaints are critical to establishing an employer’s affirmative defense against liability for hostile environment sexual harassment claims.

General principles for conducting an effective investigation include: being prompt, thorough and consistent; acting in a confidential and impartial manner; utilizing interim corrective measures during the investigation (i.e. ensuring that there is minimal or no contact between the alleged harasser and victim); and documenting the information gathered during the investigation. An investigation should always include discussions with the victim, alleged harasser and any identified or potential witnesses. As one might imagine, investigating and resolving hostile environment sexual harassment allegations represents a difficult and time-consuming task for employers.

He Said, She Said Situation
The investigation process becomes even more difficult when the employer is dealing with uncorroborated sexual harassment allegations—a classic “he said, she said” scenario with no third-party witnesses. While the general principles for conducting an effective investigation apply to investigations involving uncorroborated allegations, there are a few additional issues that an employer should consider.

  1. Crediting uncorroborated allegations. Although an employer must conduct a reasonable investigation in order to establish an affirmative defense, the employer is not required to credit a complaining employee’s uncorroborated allegations, if they are disputed by the alleged harasser. The employer is free to credit either side, so long as the decision is not unreasonable based on the evidence. At the end of the day, in uncorroborated evidence situations, employers are left to make a determination based on credibility assessments—a determination that may be difficult or impossible to make.
  2. Remedial response. If an employer decides to credit an employee’s uncorroborated allegations, the employer, based on the severity of the allegations, is free to select an appropriate remedial measure of its choosing. However, often times in “he said, she said” situations, the employer is unable to resolve a credibility conflict. In this situation, the best remedial response may be for the employer to issue a written memorandum to the alleged harasser stating that the employer was unable to determine whether any sexual harassment occurred, while at the same time reiterating the terms of the employer’s sexual harassment policy and making it clear that such conduct, if proven in the future, will result in discipline up to and including termination. Additionally or alternatively, an employer may require both the complaining employee and alleged harasser to participate in counseling, and to monitor their interactions.
  3. Disciplining complaining employees. If a complaining employee’s underlying complaint cannot be corroborated or is found to be meritless, as long as the complaint was made in good faith, the employee should not be disciplined merely for making the sexual harassment complaint. Doing so would subject the employer to a retaliation claim. The viability of a retaliation claim does not rest on the success of the underlying sexual harassment claim. There are numerous examples of cases in which an employee lost his or her sexual harassment claim, but prevailed on a retaliation claim (where the retaliation was the result of the sexual harassment allegations). On the other hand, if a complaining employee admits that he or she falsely accused another employee of sexual harassment (i.e. the sexual harassment allegations were made in bad faith), then an employer may discipline the complaining employee for the false sexual harassment complaint.

When an employer is confronted with allegations of hostile environment sexual harassment, especially uncorroborated allegations, it is important for an employer to be aware of the foregoing issues and general principles to ensure that the employer conducts an effective investigation and minimizes the possibility that a viable sexual harassment and/or retaliation claim can be made against the employer. iBi

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