Avoid Sexual Harassment Claims

Expensive. Emotionally charged. Tremendously damaging to the workplace environment. Lawyers, personnel consultants and human resource managers agree that companies must confront head-on the complex issues of sexual harassment. The solution involves adopting, implementing and rigorously enforcing an effective policy against sexual harassment.

Sexual Harassment Defined

Generally speaking, sexual harassment is unwelcome sexual conduct and/or attention that causes distress and hinders effective job performance. “Unwelcome” means the conduct was neither solicited nor encouraged, and the employee regards such conduct as offensive.

There are two types of unlawful sexual harassment situations under federal and most state laws:

1.    Quid Pro Quo is when an employee abuses his or her position within the organization by promising or granting  job benefits or opportunities in exchange for sexual favors.

2.    Hostile Work Environment is when the employer allows a difficult, abusive or sexually charged working environment to exist.

Verbal and environmental abuse situations are included in the definition of sexual harassment. The aggressor can be of the same or different gender as the victim. Examples of hostile work environment situations include communication of sexual slurs, insults and innuendos, and demeaning sexual inquiries and vulgarities. An isolated, sexually charged statement is not necessarily “harassment,” but each incident should be addressed by the company so that it does not lead to a “hostile work environment”.

Employer Liability for Harassment in the Workplace

Generally, the employer is liable for sexual harassment that occurs in the workplace. This stems from federal law that holds the employer responsible for its own acts and for those of its agents and employees, regardless of the employer’s knowledge of the conduct or environment. In some circumstances and under different legal theories, the harasser can also be held liable.

If the harasser is a co-worker, an employer may be held liable unless it can show:

a.    a written policy prohibiting sexual harassment

b.    a written procedure for complaint submission

c.    it took immediate and appropriate corrective action to end the inappropriate conduct.

Employer knowledge can be established through evidence that the matter was indeed brought to the attention of management or when the inappropriate conduct was so severe and pervasive that the employer should have known about it. The less severe or pervasive the conduct, the less likely a court will deem that the employer “should have known.”

An employer may also be liable for the sexual conduct of third persons (e.g., vendors, visitors or clients) toward an employee. In these situations, consideration is given to the extent of the employer’s control and legal responsibility for the party committing the harassment.  By their nature, sexual harassment claim investigations … both within a company and potentially by a court … are fact intensive, and each scenario will have its own dynamics.

Establish Policy and Procedures … and Implement Them

Every employer has a duty to exercise reasonable care to prevent harassment and to promptly correct harassment when it happens. By doing so, the employer may protect itself from liability. Reasonable care begins by establishing, disseminating and enforcing a written anti-harassment policy and complaint procedure. It is important to know that even the best policy and complaint procedure will not alone satisfy the burden of proving reasonable care if, in the particular circumstances of a claim, the employer failed to implement its process effectively.

Again, a successful policy and complaint procedure will be documented in writing, communicated periodically to all employees, and will serve as the cornerstone of your defense against claims. Your policy should contain the following:

1.         A statement that upper management will not tolerate harassment in the workplace, by anyone.

2.         Assurance that employees who report harassment or provide information related to such complaints will be protected against retaliation.

3.         A clear complaint process that provides accessible avenues for a complainant. This is especially important when the alleged harasser is part of upper management.

4.         Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.

5.         A process that provides a prompt, thorough and impartial investigation.

6.         Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment occurred.

Claimants Must Use Employer’s Established Process

Once an employer establishes a clear policy as described above, employees have an obligation to utilize the system to seek protection under the law. If the employee fails to exercise reasonable care in avoiding harm by utilizing the complaint process and following the employer’s disseminated written policy on sexual harassment, he or she may lose their lawsuit. In other words, the employer that exercises reasonable care may be found not liable for damages in a sexual harassment lawsuit if it can prove that the aggrieved employee could have avoided harm and rectified the situation by following the company’s sexual harassment policy.

Once a complaint is made, it is imperative that qualitative investigation immediately begin. Depending on the severity of the complaints, immediate suspension of the alleged harasser may be warranted. Regardless, the alleged victim and alleged harasser must be immediately separated pending the outcome of the investigation.  After a qualitative investigation is completed, the employer must analyze all collected information and make a fact-based decision on how to end any harassment – whether perceived or actual. The response to a complaint is as (if not more) essential to protecting the employer from liability as is the written policy and complaint procedure itself.

For more information, contact your local employment law expert.

Mike Lissau contributed his expertise to this article. Mr. Lissau is an employment law expert with Hall Estill. He can be reached at mlissau@hallestill.com.