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How Not to Handle Sexual Harassment
Adding Injury to Insult by Delaying the Investigation
Failing to properly conduct a timely harassment investigation can quickly lead an employer into hot water, as illustrated in a recent lawsuit brought by Napa County correctional officer Dante Michelucci.
Michelucci alleged he was sexually harassed throughout a 12-month period, creating a hostile work environment. He asserted two of his supervisors and one co-worker repeatedly referred to him as “bi-curious” and “gay,” made crude and derogatory comments to him, and displayed pictures in the workplace to suggest he was gay. Michelucci contended the harassment lead to his “post-traumatic stress disorder” diagnosis, which he reported to senior management.
Rather than promptly and impartially investigate Michelucci’s grievances as required by law, the managers allegedly told him to “stand up” for himself and that the harassment was a sign that his co-workers liked him.
After his supervisors and staff evidently continued their onslaught, such as littering his work locker with pictures of the gay pride parade, Michelucci “completely broke down,” sought urgent medical care, and was placed on a 90-day medical leave under the federal Family Medical Leave Act. FMLA permits eligible employees to receive protected unpaid time off due to the employee’s own serious health condition.
Only upon starting his FMLA leave did his employer finally launch an investigation into his complaints – nearly one year after he first made them. However, Michelucci asserted that Napa County used the investigation as a “sword” by demanding that he attend an in-person interview, and then accused him of failing to cooperate when he responded he was on leave, thereby forcing him to “involuntarily resign his employment.”
The case remains pending in the federal courts. Whatever the ultimate outcome, employers should proceed with care when responding to an employee’s harassment complaints, especially if the employee is also on a medical leave. Management should never browbeat such an employee into complying with inflexible or unrealistic investigative plans or, worse, threaten the employee for refusing to do so. Rather, employers should consult with experienced legal counsel for guidance to properly address the interplay of the above-referenced laws.
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July 26, 2019
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