Avoiding Liability For Sexual Harassment – The U.S. Supreme Court tried to give us some answers.

An employer can be financially responsible for the sexual harassment of employees by supervisors. How can you, as the employer, protect yourself? The U.S. Supreme Court tried to give us some answers this past June.

If you thought you understood the difference between quid pro quo harassment (the promise of something good or the threat of something bad in the workplace in exchange for accepting sexual harassment in some form) and hostile work environment sexual harassment, you can forget it. The Court said those distinctions are meaningless. Therefore, you ought to take a look at your current sexual harassment policy statement (you have one, of course) to see if it fits the new legal landscape and because it is a beginning point to your defense strategy.

The new attitude expressed by the Court is that the employer is the right party to bear the costs of a supervisor’s misconduct as a “cost of doing business.” In fact, as the Court now sees it, if there has been adverse employment action (discharge, demotion, failure to promote, undesirable reassignment, etc.) because of a supervisor’s sexual harassment, you as the employer will be liable even if you were unaware of both the adverse action and the supervisor’s misconduct. This is an absolute liability situation, no matter what you have done to prevent sexual harassment in the workplace.

Where no adverse employment action has occurred, an employer can defend itself with the following actions:

  • Have a policy.
  • Disseminate the policy to all your employees.
  • Periodically republish and reaffirm your commitment to the policy.
  • Be sure the policy:
    – contains a complaint procedure,
    – assures reasonable confidentiality,
    – encourages reporting of wrong behavior,
    – promises non-retaliation,
    – makes a commitment to conduct a full and fair investigation.
  • Educate your supervisors that:
    – sexual harassment is against your policy,
    – violations will be dealt with seriously and severely.
  • Do not wait for a “formal” complaint — you need to be alert to rumors and troubled employees who don’t want to report their problems but nevertheless express their concern.
  • Keep track of what your supervisors are doing — especially if rumors or informal reports identify non-conformity.

The ultimate test is whether you exercised reasonable care to prevent and to promptly correct inappropriate behavior. How you respond to any incident will be relevant to a determination of your reasonableness.

A further defense will also be available in the hostile work environment situation if you have tried to do the right (“reasonable”) thing and the victim employee has failed to use the policies and procedures you have put in place. You may be protected if you have responded appropriately in the case you are defending by taking the following actions:

  • Promptly conduct an investigation.
  • Come to a conclusion.
  • Act decisively to prevent recurrence by:
    – disciplining or terminating the bad supervisor,
    – breaking up the supervisor/subordinate relationship.
  • Reinforce/restate your policy about these matters.
  • Report back to the victim what actions you have taken and thank the victim for bringing the matter to your attention.
  • Make a similar report to all those employees who cooperated in your investigation and thank them for doing so.
  • Do a follow-up, after some period of time, with both the accused and the accuser to be sure things are as they should be.
  • If you detect a need, offer the victim counseling and support so that the victim can put this in the past and continue to be a productive employee.
  • If the matter looks complicated, consider using an outside professional to do the investigation.

Of course, if you have any further questions, please contact one of our attorneys.