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In the past five years, the U.S. Supreme Court has decided several cases outlining the circumstances under which employers can be held liable for sexual and other forms of harassment. These cases have concluded that there are circumstances under which employers can escape liability even if harassment occurs. Under Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, employers were found to be vicariously liable for sexual harassment by supervisors. Vicarious liability means that the supervisor's actions are imputed to the employer and the company is liable for the harassment even though it did not have knowledge of the supervisor's conduct. The Court set forth two circumstances in which no employer defense is available: Where the harassing supervisor holds a sufficiently high position (e.g., president, owner, partner, etc.) to be the company's proxy or where a harassing supervisor's actions culminate in an adverse job action against the victim (i.e. a failure to be promoted or receive a raise because sexual advances were refused).
An employer has two defenses. Show there is insufficient evidence to support the allegations of the harassment or prove that reasonable efforts were taken by the company to prevent and correct harassment and the employee failed to take advantage of the company's corrective policies. There are strong incentives for employers to take efforts to insulate themselves from liability by taking immediate, bold and continuing steps to prevent harassment from occurring in the first place. The following action steps will assist an employer in preventing sexual harassment, and in the event it does occur, provide the employer with evidence necessary to offer a defense.
Design
A formal, written anti-harassment policy should be established, which describes prohibited conduct, states the employer's opposition to it, and outlines potential disciplinary actions if the conduct nevertheless occurs. A policy should include procedures for making, investigating and resolving harassment and retaliation complaints and be specifically tailored to incorporate the company's culture and resources.
Designate
An employer should clearly articulate in the sexual harassment policy to whom the complaint may be made. Courts have found an employer liable for sexual harassment by failing to clearly identify the persons who employees should contact to make a sexual harassment complaint. The employer should also make sure the policy contains a provision which will allow the complainant to bypass his or her supervisor if that person is the harasser. It is recommended that employers designate both a male and a female management employee in the Personnel or Human Resources Department as the recipients of harassment complaints.
Disseminate
Even where the employer had a written sexual harassment policy, the Supreme Court has found an employer liable because of failure to effectively communicate and disseminate the policy to all employees. As a result, the policy should be made available to employees by being disseminated individually during new hire orientation, included in the employee handbook, or posted in a public workspace. In addition, employees should be reminded periodically (at least annually) of the company's sexual harassment policy. This will enhance a company's ability to prove the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the company.
Investigate
Investigate all complaints of harassment promptly. An effective sexual harassment investigation must be prompt, thorough, well-planned, fair, accurate, confidential and be well-documented. Employers should plan for an investigation before a complaint is filed. This requires training those individuals designated to receive complaints. By conducting a prompt, thorough and reasonable investigation, an employer shows it takes complaints seriously and has made efforts to prevent and correct sexual harassment.
Document
Obtain a signed Acknowledgment Receipt when distributing the sexual harassment policy to prove it has been seen and read by each employee. A new Acknowledgment Receipt should be placed in every employee's file on an annual basis.
Document all efforts taken in the investigation process to prevent and correct harassment. This will provide an employer with proof that it exercised reasonable care in preventing and responding to sexual harassment claims.
Train
Many employers institute anti-harassment training programs. Unlike policies, training programs are not required by courts, although employers who institute them are viewed as proactive in preventing claims. Train all supervisors on sexual harassment prevention and investigation. Effective training can help ensure that a supervisor will not engage in sexually harassing conduct and will respond appropriately to a complaint of harassment. In addition, an employer may avoid liability if it promptly and effectively investigates a harassment complaint.
Train non-supervisory employees on the sexual harassment policy and the procedures to follow if they experience sexual harassment. Such training establishes an employer's ability to show it took reasonable steps to prevent sexually harassing behavior. It can also establish that an aggrieved individual unreasonably failed to take advantage of the employer's preventive and corrective opportunities.
Conclusion
Employers who have taken appropriate steps to prevent harassment will have a defense against sexual harassment claims. Taking the action steps suggested above can assist an employer in proving it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the complainant unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer.
For more information regarding sexual harassment, training programs and publications, please call (414) 423-1330 or e-mail Krukowski & Costello's educational services department.
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