Scenario:  You are the president of an association with a staff of on-site employees who manage the clubhouse and pool, perform maintenance and repairs of the common areas, do the accounting and collection for the association, and otherwise administer the affairs of the association.  You get a call at 5:00 on a Friday afternoon from the receptionist complaining that the maintenance supervisor is sexually harassing her by telling dirty jokes with other employees while standing at the front desk.  Now what?

The first step is to make sure you understand what sexual harassment is.  Sexual harassment is unwelcome conduct of a sexual nature, either physical or verbal, that creates an intimidating, hostile or offensive working environment.  It can include, but is not limited to:

  • Unwelcome sexual advances
  • Requests for sexual favors
  • Posting of sexually explicit calendars or photographs
  • Sexually explicit e-mails
  • Jokes of a sexual nature
  • Unwelcome physical touching

Sexual harassment can arise when such conduct is aimed at an employee directly or when an employee observes other employees engaging in conduct that the observing employee fined unwelcome or offensive.

When faced with a complaint of harassment, the last thing the association, as the employer, wants to do is to ignore the complaint or write it off as some petty inter-office feud.  Rather, the association should take immediate action to respond to the situation.

The first step for the employer (the association, in our case, either through the board or the general manager) is to conduct an investigation of the complaint.  Interview the complaining employee using open-ended questions.  The goal is to find out what happened, when it happened, where it happened, and whether there were any witnesses to the conduct.  How often has the behavior occurred?  How has the conduct affected the complaining employee?

After interviewing the complaining employee, the alleged harasser and any witnesses should also be interviewed in the same manner.  Do others corroborate the allegations of the complainer?  Can any discrepancies be explained?  Are the witnesses credible?

Based on the results of the interviews, a determination then must be made whether sexual harassment has occurred.  If so, appropriate discipline against the harasser should be taken, which will depend on the severity of the harassment.  If the investigation results in a determination that no harassment has occurred, the person conducting the investigation should meet with the complainer to explain the results of the investigation and why no action will be taken.

Regardless of the outcome of the investigation, the association must not take any adverse action against the complaining employee in retaliation for the employee making the complaint in the first place.  Based on recent cases, we have noted employees bringing suits for discrimination are often claiming retaliation as well, and the retaliation claims are often the more successful of the two claims.

The bottom line is for any association with employees to, through the board and/or the general manager, keep an open door policy that allows employees to comfortably and safely air complaints, and for the association to swiftly and thoroughly investigate any complaints of harassment or discrimination of any kind.

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