An employee has filed a sexual harassment complaint; however, her coworkers have noted that she herself makes a lot of lewd jokes and uses “colorful” language. We haven’t done anything about her behavior. What are our options?
When an employee makes a complaint about sexual harassment, it is imperative that the employer take action and conduct an investigation.
In this situation, even though the complainant herself has engaged in inappropriate conduct by making questionable comments, that doesn’t free the employer of the obligation to conduct an investigation. The employer can’t take the position that “well, you started it.”
This type of situation highlights the need to use progressive discipline in all circumstances involving inappropriate conduct. In this situation, the employer’s failure to address the complainant’s own behavior created an atmosphere of virtually condoning this type of behavior.
In certain cases, casual banter can go too far in the wrong direction, starting relatively innocently, then graduating to unacceptable language and crude jokes.
Also, workplace romances can result in behavior and language that are inappropriate. When such romances end, the casual comments that an employee accepted can become unwanted.
All these scenarios are preventable by using progressive discipline. When an employee makes a suggestive remark or crude joke, the employer should issue warnings and escalate the discipline if the employee continues to engage in bad behavior.
Dana Leisinger, Employment Law Expert, CalChamber
Nonmembers can read CalChamber’s 10 Things You Might Not Know About Sexual Harassment or Set the Tone: Sexual Harassment Prevention white papers (member can read here).
CalChamber members can read more about Harassment Investigations and Progressive Discipline in the HR Library and use the Warning Letter Checklist and Sample to help draft your own letter of warning. Not a member? Learn how to power your business with a CalChamber membership.
