An Apology is not Enough to Avoid Sexual Harassment Liability

posted by Michael Fortney  |  Jun 23, 2015 07:17 AM in Employment Law:Workplace Issues

Liability for an employer’s harassing conduct is not avoided with a simple apology from the employer.  Corrective actions are needed such as an investigation and subsequent disciplinary action. 

In Retuerto v. Berea Moving Storage & Logistics, an employee claimed that one of the owners of a small company sexually harassed her for over two years. She complained twice. She complained early on, and again when she resigned as a result of the harassment. Her complaints included reports that the owner made “verbal advances” towards her, commented about dreams he was having about her and her physical appearance, questioned her about her makeup and hair, rubbed against her while she was at her desk, pretended to read her computer screen, crawled under her desk to fix a computer cord and repeatedly commented on his need for sex while demanding to know how the employee felt about him.

The first time the employee complained, the owner apologized. His harassment decreased, but it did not stop. The second time she complained (when she quit), the owner’s sister emailed her an apology, offered help, asked how the employee was feeling, and offered to have the owner take the day off when the employee returned to work. The employee did not return to work and instead filed suit for sexual harassment.

Under Ohio sexual harassment law, an employer can avoid liability for a hostile work environment created by a supervisor’s harassing conduct if:

a.       The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
b.      The employee unreasonable failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.

In this case, the Ohio appeals court covering Cuyahoga County found that apologies, by themselves, do not demonstrate that “prompt and corrective action was taken” following the employee’s reports of sexually harassing conduct. The appeals court sent the case back to the trial court for a trial on the merits.

To avoid sexual harassment liability when employees complain, employers must promptly investigate the complaint and take appropriate disciplinary action. Saying “sorry” is not enough. While effective discipline of a small company owner might be difficult or impossible, when owners are truly contrite, they owe it to themselves and their employee to accept right the wrong and prevent the conduct from continuing. Even when the harasser is an owner, if the harassing conduct stops in response to appropriate discipline, the company can avoid liability for the owner’s actions.

Fortney & Klingshirn’s lawyers conduct sexual harassment investigations and represent employers in sexual harassment cases. If your company receives a report of sexual harassment by any employee, especially an owner, do more than apologize. Contact us to assist in taking prompt and corrective action.

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