The high cost and toll of sexual harassment and gender discrimination in law enforcement: Part 2
There are four big mistakes that seem to be endemic to any sexual harassment, sexual assault, or gender discrimination case
In part 1 of this article, I presented statistical information based on nearly one and a half years of research I conducted into cases of sexual harassment, sexual assault and gender discrimination filed between 2000-2019 by female police officers against their departments and male colleagues.
The numbers provided a sobering view of the financial cost of these civil cases across departments of varying sizes serving diverse demographic bases. The numbers also reflect the extent of this type of workplace misconduct and its high cost to police departments.
Female officers are still encountering unacceptable behavior in the workplace and accountability is forcing a reckoning for some departments with their past culture and practice. In this article, I move away from the statistical research and present a practical litigation view from someone who has represented plaintiff police officers.
Responding to harassment, assault and discrimination cases
When responding to a complaint there are four big mistakes that seem to be endemic to any sexual harassment, sexual assault, or gender discrimination case:
1. The human resources manager dismisses the complaint as a “he said/she said” situation
The first is an unfortunate response by many police department HR managers to sexual harassment complaints. On at least three occasions I have been with a client when an HR manager has uttered those words. Each time it was noted and included as a paragraph in the lawsuit. It is a lazy response indicative of an administrator who does not want to properly perform their job function.
In one of the situations I encountered, the HR professional, in an unrelated investigation, was found to be improperly using her staff to run personal errands and working out at a private club while on the municipal time clock. It was no wonder her reaction to my client’s complaint was a dismissive “he said/she said” rationale, she was too busy violating HR guidelines to investigate the violations of other employees.
The bottom line, from a human resources perspective, is that every complaint must be investigated, and the investigation must be completed to a conclusion.
2. A supervisor attempts to talk the reporting officer out of filing a formal complaint
No matter how often supervisors are advised in sexual harassment training sessions of their duties and responsibilities when a subordinate comes forward with a sexual harassment complaint there are still many who attempt to talk the reporting officer out of making a report or who try to handle it informally.
If an officer has come forward to make a formal report it is a significant step and generally undertaken after giving the matter much consideration and discussing it with family. Police officers are problem solvers, but this is not a situation where a supervisor should freelance and attempt to resolve the matter on their own. There is a process to be followed within police departments for complaints of sexual harassment and discrimination.
Adhere to the process if you are a supervisor. It is the right course of action and will avoid you becoming a named defendant in the lawsuit.
3. The reporting officer is transferred
Why is the first reaction to a female police officer making a complaint against a male colleague to transfer the reporting officer? This is often a rushed response intended as a means of protecting the complainant officer. But is it really? Often the result has the opposite effect. The complainant officer is marginalized within the new assignment and is usually transferred from an assignment she has worked towards throughout her career.
Recall from part 1 that the majority of complainants in the study were found to be in the 30-39 age group, which places them approximately mid-way through their careers. Transfer of the complaining officer is punitive, especially when the accused offending officer is permitted to remain in assignment. Of course, this is not an easy situation to deal with and the size of the agency can limit the options available. Police department administrators and supervisors have to tread carefully when considering how to handle personnel assignments when confronted with a sexual harassment, sexual assault, or gender discrimination complaint.
Plaintiff’s attorneys will and have argued successfully that transfer of the reporting officer is retaliatory.
4. The reporting officer is retaliated against by the employer
Retaliation against a complainant officer occurs often and is usually disguised as an administrative event unrelated to the complaint. Unfavorable job assignments, denial of overtime or leave, contrived disciplinary offenses and isolation of the complaining officer, all factor into retaliatory allegations in a civil lawsuit. Other times the retaliation is more direct and odious.
The irony in many cases I have studied is those wherein a reviewing court determined the allegations of sexual harassment or discrimination to be unfounded but held against the police employer due to the retaliation the complainant endured after making a complaint. In many other cases reviewed, the department made an already bad case worse by its actions against the female officer subsequent to a complaint being filed. Of the 172 cases studied, 80 (approximately 46.5%) of them had retaliation as a component of the filed civil lawsuit. The average value of cases with a retaliation claim, from combined settlement and jury verdict results, was $587,517.68 with an average settlement amount of $460,142.86. Based on the average settlement costs provided in part 1, retaliation claims add, on average, approximately $70,711.42 to settlement costs. If those cases go to a jury verdict the results are in the high six-figure to seven-figure range.
Sexual harassment, sexual assault and gender discrimination have no place in a modern, professional police department. However, if confronted with a complaint it is best to follow the reporting protocols in place and not exacerbate the issue by committing one of the four mistakes outlined above. Otherwise, you will be heading for expensive liability damages while making plaintiff attorneys very happy.
EnD disparate treatment
Women have added great value to the law enforcement profession. They have stood side by side with male colleagues during emergencies and armed confrontations. Women have ascended the ranks to lead some of the largest police agencies in the country. Still, the data indicates that they have not always received the level of equality and fair treatment accorded their male colleagues.
If U.S. policing is to make a significant gain in the number of women recruited to the profession, then police administrators and line supervisors must do a better job of ensuring disparate treatment and sexual harassment no longer stand in the way of drawing qualified candidates to the job.
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