Don’t just shake it off – handling sexual harassment claims in the workplace
This Friday the world’s media spotlight was firmly fixed on US District Judge William Martinez as he presided over an extremely public legal battle between popstar Taylor Swift and the Denver radio presenter Robert Mueller. The dispute between the parties centred on an alleged groping incident at a pre-concert event in Denver in 2013 which resulted in the radio DJ’s dismissal by his employer. Mueller sued for tortious interference with his employment contract, claiming that the pop star had set out to get him fired and that her allegations had cost him his reputation and his job. Swift countersued for a notional $1 for assault and battery. On Friday, the US judge dismissed Mueller’s case, finding no evidence that the popstar’s complaint was insincere. This Monday a jury upheld Swift’s counterclaim.
What is a cautionary tale involving very public and very damaging lawsuits also offers a clear reminder for employers on this side of the Atlantic of their responsibilities when confronted with a complaint of sexual harassment in the workplace.
Sexual harassment is defined in Northern Ireland as unwanted conduct related to the sex of the victim which violates his or her dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment. Such conduct can be verbal, non-verbal or physical.
Once an employer received a complaint of sexual harassment, they should immediately act to ensure a fair and effective procedure is followed. It is important to find out if the affected employee wants their complaint to be treated formally. If their complaint is serious, it may require formal treatment regardless. The employer should act quickly to investigate the complaint, and gather any relevant evidence such as witness statements, phone records or chat histories. Due to the sensitive nature of such complaints, the employer should carefully consider who will conduct the investigation, the level of confidentiality required and the need to suspend the alleged aggressor. Certainly, the employer should act quickly to prevent further confrontations, harassment or bad blood arising during the process.
Following the investigation, the employer should carefully consider if their disciplinary policy is engaged. It is important to remember that a Tribunal will be interested not only in the purpose of unwanted conduct but its effect. A joke, comment or behaviour which one employee believes is harmless may still constitute sexual harassment because of its effect on its recipient.
Whilst high profile court-room battles can be entertaining, they are always costly. The reality is that in most cases of workplace sexual misconduct, an employee should not have to look past their employer for a fair hearing and should always feel able to complain. In such sensitive and potentially damaging cases, employers should carefully apply their policies on harassment, conduct, grievances and disciplinary action and consider the need for professional legal advice. Whether a complaint is upheld or not, it should never just be shaken off.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.