"As a management official you are responsible for the conduct of your supervisors and you must investigate all allegations of harassment (both sexual and non-sexual)."
In the following cases: Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), the Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors.
The standard of liability set forth in these decisions is based on two principles:
1) an employer is responsible for the acts of its supervisors; and
2) employers should be encouraged to prevent harassment, and avoid or limit the harm from harassment.
In order to accommodate these principles, the Court held that an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action (e.g., firing, demoting, negative changes in assignments or responsibilities). However, if it does not, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements:
1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior (e.g., having a workplace harassment prevention policy), conducted fact findings on all allegations of harassment, and if harassment is substantiated, performed the necessary corrective actions; and
2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
For your reference: VA does have a harassment prevention policy, Directive 5979. It can be accessed by clicking this link.
So what does this mean for managers? As a management official you are responsible for the conduct of your supervisors and you must investigate all allegations of harassment (both sexual and non-sexual). If you find that the alleged harassment is substantiated you must take corrective action. The corrective action can range from mandatory training for the offender up to termination.
Please work with your HR Specialist to determine the appropriate level of corrective action/discipline for the offense.
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