The supervisor did it.
Yep, you’ve concluded that he sent unwanted texts to his subordinate telling her she looked “beautiful.” Maybe even stopped by her hotel room unannounced one night at a conference for a “nightcap”.
While the subordinate’s career does not appear to have been harmed in the legal sense (i.e. there’s no “tangible employment action”), you’ve concluded that there was something “inappropriate” that happened.
(And let’s state the obvious: harm can exist even outside the “tangible employment action” context — that’s an issue for another post.)
So, back the the issue of the day — something “inappropriate” happened; maybe even something that meets the legal definition of “sexual harassment”.
But what if you conclude that a lesser type of sanction is warranted? Can you do that? If so, what’s the standard?
In cases where there has been no tangible employment action taken, the EEOC has actually set forth in its guidance a whole discussion that says that firing is but one possibility. What’s important is that the remedial measures should be designed to:
- Stop the harassment;
- Correct its effect on the employee; and,
- Ensure that the harassment does not recur.
The EEOC’s guidance notes that these remedial measures “need not be those that the employee requests or prefers, as long as they are effective.”
Moreover, “in determining disciplinary measures, management should keep in mind that the employer could be found liable if the harassment does not stop. At the same time, management may have concerns that overly punitive measures may subject the employer to claims such as wrongful discharge, and may simply be inappropriate.”
The EEOC suggests that the employer balance the competing concerns and that disciplinary measures should be proportional to the seriousness of the offense.
What does that mean?
If the harassment was minor, the EEOC suggests, such as a small number of “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary.
On the other hand, if the harassment was severe or persistent, then suspension or discharge may be appropriate.
And importantly, remedial measures also should correct the effects of the harassment. In the EEOC’s words, “such measures should be designed to put the employee in the position s/he would have been in had the misconduct not occurred.”
The EEOC provides various examples of measures to stop the harassment and ensure that it does not recur. These include:
- oral or written warning or reprimand;
- transfer or reassignment;
- reduction of wages;
- training or counseling of harasser to ensure that s/he understands why his or her conduct violated the employer’s anti-harassment policy; and
- monitoring of harasser to ensure that harassment stops.
As for examples of measures to correct the effects of the harassment, these include:
- restoration of leave taken because of the harassment;
- expungement of negative evaluation(s) in employee’s personnel file that arose from the harassment;
- apology by the harasser;
- monitoring treatment of employee to ensure that s/he is not subjected to retaliation by the harasser or others in the work place because of the complaint; and,
- correction of any other harm caused by the harassment (e.g., compensation for losses).
How does this apply in the real world?
Jon Hyman of the Ohio Employer’s Law Blog, highlighted a case several years back where the employer didn’t terminate the offending supervisor on the first go around, but rather gave them a last chance.
Unfortunately, the employer didn’t follow through when the supervisor STILL engaged in harassment. The case, Engel v. Rapid City School District, is worth a read to show how an employer’s reasonableness the first go around, can be used against it when it doesn’t follow through.
The EEOC’s guidance is a helpful guide to employers in navigating these issues. The employer should look to the particular circumstances of any matter and determine what punishment is appropriate in that particular matter.
Perhaps it will conclude that firing is appropriate.
But if it concludes, based on an analysis of the entirety of the situation, that something less than that is appropriate too, the EEOC’s guidance can be a useful guidepost for that determination.