Responding to a sex harassment claim

Q. The manager of ABC Company, Mr. Jones, receives a complaint from an employee, Ms. Smith, that she is being sexually harassed. What does Mr. Jones need to do, and how quickly does he need to do it?A. A recent decision out of the Eighth Circuit Court of Appeals provides employers with additional guidance on how best to respond to an employee’s claim of sexual harassment. In Alvarez v. Des Moines Bolt Supply Inc., the Plaintiff, Veronica Alvarez, filed claims against Des Moines Bolt Supply Inc. of sexual harassment and retaliation.Alvarez began working for the company in February 2001. In September 2005, she began writing a journal detailing offensive conduct that she allegedly endured at work. In November 2005, she reported to her supervisor that another, non-supervisory employee, Brad Nurnberg, had made sexual comments to her. Alvarez’s supervisor twice warned Nurnberg not to make any sexually inappropriate comments to Alvarez.On Jan. 10, 2006, Alvarez informed her supervisor that Nurnberg had inappropriate physical contact with her. Her supervisor wrote Nurnberg up, and decided to let upper management determine the appropriate course of action.Ten days later, Alvarez spoke with her new supervisor, Clint Jubell, who asked her to put her complaints in writing, and then passed along the investigation to the operations manager. An investigation ultimately determined that both Alvarez and Nurnberg engaged in behavior that was in violation of company policy. Both employees were suspended, and Nurnberg was transferred to another department. He never harassed Alvarez again.After Alvarez returned from her suspension, she was allegedly harassed by other co-employees, but she never reported it to any supervisor or manager of DMBS. She ultimately resigned her employment in May 2006, before filing claims of sexual harassment and retaliation in the U.S. District Court for the Southern District of Iowa.The court granted summary judgment on behalf of Des Moines Bolt, finding that Alvarez: could not show that the reasons for her suspension were pretextual; that she could not prove constructive discharge because she has never reported the harassment to Des Moines Bolt; and that Des Moines Bolt was not liable on the sexual harassment claim because it took prompt remedial action in response to Alvarez’s complaint in January 2006 and because Alvarez had not reported the harassment.The Eighth Circuit affirmed the court’s decision.This decision holds some important tips for employers when dealing with sexual harassment and retaliation allegations. First, Des Moines Bolt was found not liable because it responded to Alvarez’s allegations in a timely manner. Alvarez made her allegations of improper physical contact on Jan. 10, 2006, which the Court viewed as the date in which Des Moines Bolt was notified of conduct that rose to the level of a hostile environment. The date on which the investigation began was Jan. 20, 2006. The court deemed this timeframe to be reasonable. Specifically, the court stated, employees “often must ‘tolerate some delay,’ however, so that an employer can ‘gauge the credibility of the complainant and the seriousness of the situation.'” Significant in the decision was that the company’s “actions were ‘reasonably calculated to stop the harassment'” and the company’s response “effectively ended the harassment within a reasonable time.”
Conducting an investigationAlthough not a substantial issue in this decision, the Eighth Circuit also addressed the question of who should conduct investigations into sexual harassment claims.Alvarez claimed that the investigator was a friend of Nurnberg, and therefore the internal investigation was flawed. While the court found in favor of the employer that the investigation was done in good faith, as a best practice, employers may want to bring in an outside investigator to conduct the investigation, particularly if there is some sort of preexisting friendship or other relationship between the investigator and witnesses.Even if an internal investigator conducts an appropriate evaluation of the complaint, there may be a shadow of impropriety over his or her findings. The only way to fully avoid this is to bring in a neutral investigator with no pre-existing relationships or personal beliefs about the witnesses.The ultimate lesson from this decision is that employers must appropriately respond to any complaints of sexual harassment, and implement remedial measures.”[T]he reasonableness of remedial measures may include the amount of time that elapsed between the notice and remedial action, the options available to the employer, … and whether or not the measures ended the harassment.”Employers should respond to complaints as soon as possible, but may take time to determine the appropriate method of investigation. Upon completion of the investigation, employers should use reasonable methods to end the harassment.Depending on the severity, it may be as simple as separating two employees but could go as far as termination of employment.Katie Kiernan, an attorney in the Litigation Department at McLane, Graf, Raulerson & Middleton, can be reached at 603-628-1490 or