Employers Must Take Enough Action to End Harassment
Harassment in the workplace can derail careers and personal well-being. New York City workers have rights and deserve environments free from hostility. When complaints about harassment arise, employers have a duty to respond decisively. Below, we explore what “remedial action” means and why it must be carefully designed to end wrongdoing. We also discuss how performance improvement plans (PIPs) can sometimes be misused in retaliation for protected activity.
What Does “Remedial Action” Entail?
When an employee makes a protected complaint of harassment—such as reporting sexual harassment, racial discrimination, or other unlawful conduct—an employer must do more than just acknowledge the complaint. The law requires a genuine effort to stop the misconduct. In legal proceedings, courts often examine the steps an employer took after learning about harassment to determine if those steps were adequate.
Investigations
One of the biggest responsibilities for an employer is to investigate complaints quickly. Delays can make employees feel ignored and can give harassers time to repeat their behavior. Proper investigations often include:
- Speaking directly with the affected employee.
- Interviewing relevant witnesses.
- Reviewing any relevant documents or video evidence.
- Creating detailed records of each step in the process.
Imposing Appropriate Consequences
Even a well-run inquiry may fail if the consequences do not meet the severity of the misconduct. “Consequences” here can mean various interventions:
- Written warnings.
- Mandatory trainings or counseling.
- Suspensions or demotions.
- Termination of employment if the behavior is severe enough.
The key point is whether the remedial measures end the harassment. Firing a serious offender might be warranted if lesser discipline seems unlikely to work. On the other hand, imposing only light discipline for egregious acts can lead to legal trouble if the harassment continues.
Case Spotlight: Lessons from Scoppettone v. Mamma Lombardi’s Pizzico, Inc.
In one illustrative case, the employer responded to a harassment complaint by firing one individual swiftly and interviewing another employee. Even though the employer did not fire the second alleged harasser, the court looked at whether the corrective steps were enough to prevent future misconduct. The takeaway: an employer that has a policy, follows it, and makes a genuine effort to fix the problem reduces the chance of liability. If the harassment stops, it typically shows that the response was adequate.
What If the Harasser Is Not Fired?
Employers do not always have to terminate a harasser. Courts check if the punishment is enough to keep the harassment from recurring. If the harassing actions continue, the initial remedial steps were probably insufficient.
Case Spotlight: Hamilton v. Federal Savings Bank
Another case highlights how an employer faced an intense one-time incident of harassment. The company quickly investigated and took corrective measures. Although the employer decided not to fire the alleged harasser, the disciplinary steps they took were significant: the person was banned from the office for months, forced to attend an anger management course, and informed that any repeat offense would lead to immediate termination. Courts often review these sorts of actions to see if the employer acted swiftly and in a manner that kept the complainant safe from further harm.
Performance Improvement Plans and Potential Retaliation
A performance improvement plan (PIP) can be a legitimate tool to help employees raise their performance. However, if a PIP follows soon after a protected complaint, it may appear retaliatory. Employers that weaponize PIPs might do so to build a paper trail for eventual termination, while claiming it was “performance-based.” Under employment discrimination laws, that tactic can become a serious liability.
If you are facing harassment or suspect retaliation because you stood up for your rights, do not wait. Consider reaching out to a New York City employment attorney who understands how local, state, and federal laws align to protect workers. Our firm offers confidential consultations by video, phone, or in-person.
Contact DeToffol & Gittleman to schedule a meeting about your situation.
Disclaimer
This article is for general informational purposes. It is not legal advice and might not reflect the most up-to-date legal changes. Laws vary by jurisdiction and often change. Consult a licensed attorney for advice relating to your particular facts and circumstances.
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