Preventing Workplace Harassment, Discrimination, and Retaliation

After a prompt and thorough investigation, the employer should immediately do whatever is necessary and appropriate to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from reoccurring. 210 Disciplinary action against the offending supervisor or employee, ranging from reprimand to discharge, is always required. 211

To discipline public employees for harassment, the public employer must follow appropriate statutory, regulatory, or collectively-bargained procedures. Otherwise, the public employer could be subject to liability from the disciplined harasser.

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Generally, the corrective action should reflect the severity of the misconduct. The employer should make follow-up inquiries to ensure the harassment has not resumed and the victim has not been retaliated against. If the employer’s remedial efforts are not effective, the employer should initiate additional, more severe measures until the harassment ends. The effectiveness of a remedial action is measured by whether it: (1) ends the current harassment; and (2) deters future harassment. 212 Example: For first time, minor offenses, an employer may discipline the harasser and try to prevent further harassment by giving the employee a verbal warning in a counseling session, expressing strong disapproval, demanding that the unwelcome conduct cease, and threatening more severe disciplinary action if the conduct does not cease. If the harassment continues despite the stern warning, the employer must then pursue disciplinary action more severe than counseling to ensure that the behavior ends. 213

Remedial action should not include moving the complainant to a less desirable work location to separate the complainant from the alleged harasser and hostile work environment. 214 Such action could be perceived as retaliation for complaining about harassment. A public employer should instead consider transferring or moving the alleged harasser to another department or location. The employer could also consult with the complainant as to how to improve the employee’s working environment or where, if anywhere, the employee would like to be moved.

LCW Practice Advisor

Case Study on Employer’s Duty to Prevent and Remedy Harassment

Birschtein v. New United Manufacturing, Inc. 215 A co-worker made repeated sexual comments to an employee. A supervisor put an end to the comments, but the co-worker then began to stare at Birschtein several times a day. Birschtein complained to her employer but the employer

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 54