The values of sexual abuse and molestation (SAM) claims are on the rise, and as public entities, special districts are not immune. While the recent spike seems driven primarily by public awareness of social justice movements like #MeToo, it may also be the result of increased interest and better tactics from plaintiff lawyers, as well as outdated defense strategies.
Whatever the case, it’s just one more reason to ensure that your district is doing everything it can to reduce risk and address instances of SAM and other sexual harassment before they turn into major verdicts.
Mitigating Loss
There are tactics you can use to mitigate courtroom losses due to SAM claims, including:
- Retaining qualified legal defense counsel that uses up-to-date strategies
- Securing independent examinations of the plaintiff
- Considering early mediation
- Accepting responsibility without admitting liability if the case proceeds to trial
- Providing a counter value in the event you lose the case, instead of leaving it up to the plaintiff counsel and the jury to set a value
Still, given juries’ tendency to decide in favor of plaintiffs, the best way for a district to avoid major SAM-related losses is to take appropriate action before a situation reaches the litigation stage.
Establishing an Effective Policy
When it comes to human resources policies, SAM usually falls under the larger umbrella of sexual harassment, so it’s worthwhile to review your district’s policy. Yet, while enforcing a good policy can help you deter allegations of employer inaction, it’s about more than that. Sexual harassment constitutes a threat to safety, and it’s in everyone’s best interest to take it seriously.
A good sexual harassment policy should include mandatory reporting and provision for an immediate, thorough, impartial investigation. Experts at Enquiron – the company that brings you HR Helpline – suggest the following:
Report the complaint promptly.
If you are not the HR person or someone who is defined as the investigator at your organization, assume the responsibility to report the issue to appropriate personnel immediately.
Take remedial action as you learn details.
Depending on the severity of the allegations, this may mean that the accused must be removed from the workplace until the investigation is complete. A decision to separate or remove the accuser or victim can constitute retaliation.
Initiate an investigation immediately.
Your workplace harassment prevention policy should include the right steps and questions to ask when interviewing all involved parties. This includes the accuser, the accused and anyone who may have witnessed any of the alleged harassment. It is important to avoid delays in the investigation process.
Document everything.
As in all matters HR-related, documentation is important. The investigator and the organization should keep all of the information associated with the investigation confidential and in a separate investigative file, with the exception of resultant disciplinary action (if any), which should be put in the respective employee’s personnel file.
Moving Forward
Take whatever action is warranted by the results of your investigation and consistent with your company policy and practice. If wrongdoing is found to have occurred, this may mean that the authorities are notified, or the accused is let go or issued some other disciplinary action. If there is no evidence of any policy violation or other misconduct, you are not required to take disciplinary action.
As instances of misconduct continue to surface, jury outrage over employer inaction increases, and public entity defenses centered on a lack of notice become less and less effective, your response to a report of sexual harassment could make all the difference.
Company Culture
That said, sexual harassment policies aren’t new. The Bureau of Labor Statistics reports that 98% of companies already have them, and chances are, so do you. But how effective are these policies in addressing or reducing sexual harassment? Sometimes, not very.
That’s partly because so many employees are reluctant to follow mandatory reporting guidelines for reasons that have more to do with their company’s culture than anything else. For example, although federal law and most sexual harassment policies explicitly prohibit retribution against someone who reports instances of harassment, studies show that potential reporters still fear reprisal and trivialization – and often for good reason. One study showed that “75% of employees who spoke out against workplace mistreatment faced some form of retaliation.”
Likewise, employees who witness an instance of sexual harassment but are not directly involved may suffer from the bystander effect, not knowing what to do with what they have witnessed. There could be a prevailing attitude that downplays sexual harassment or treats it as taboo, making victims and witnesses reluctant or embarrassed to cause a stir.
But mandatory reporting is essential, especially when it comes to instances of SAM. The sooner you are alerted to misconduct, the sooner you will be able to intervene. Given the weighty repercussions for your district and for potential victims, you should immediately address company culture that encourages dismissiveness or negatively impacts employees’ willingness to report sexual harassment.
How You Can Make a Difference
Consider the following strategies to increase awareness and establish a supportive culture:
Send notifications about a harassment-free workplace to all applicants and new hires
Adopt and enforce zero-tolerance policies
Educate employees on how to report instances of sexual harassment, communicating these details clearly, often, and through a variety of forms and methods
Invest in sexual harassment education that moves beyond your company’s standard policy
Provide bystander training
Send out confidential culture surveys to your employees on a regular basis and making changes based on feedback
Take all complaints seriously, avoiding assumptions about their credibility
Most importantly, though, you should start at the top. A comprehensive report by the EEOC’s harassment task force has found that above all, “leadership must establish a sense of urgency about preventing harassment.” For managers, supervisors, and human resources representatives, this means setting clear expectations, holding people accountable, maintaining a culture that values diversity, and modeling appropriate attitudes and behavior for employees under your direction.
How We Can Help
We provide valuable resources for your district – from free confidential pre-paid legal advice through HR Helpline to 10 hours of consulting recommendations from our management consulting partners. You can also find sexual harassment courses on TargetSolutions.
In the event that an allegation is made against a board member, manager, supervisor, or employee in your district, we will cover public relations costs as well as legal defense of the manager and district, and sexual harassment training for the district’s management.
