When is an Employer Liable for Sexual Harassment Committed by its Supervisors?
The employer may be liable unless it can prove that:(1) It acted reasonably to prevent and promptly correct the harassment; and,
(2) The plaintiff-employee did not take reasonable steps to prevent or stop the harassment.
How do these legal decisions affect my business?
My company has already instituted a policy.
That’s a start, but the Supreme Court has stated that an employer may still be held liable for sexual harassment even if it has adopted a sexual harassment policy, if that policy and proper procedures for its implementation are not made known to all of its employees.
What if no adverse action is taken against the employee by the supervisor?
The Supreme Court held that even if the supervisor’s harassment does not include adverse action (for example, discharge, demotion, or undesirable work assignments) being taken against the plaintiff-employee, the employer may only escape liability if it can prove that: (1) it exercised reasonable care to prevent and promptly correct the harassment; and, (2) the plaintiff-employee failed to take reasonable steps to either prevent or stop the harassment. If adverse action is taken against the employee, such a defense is not available and the employer will be liable for the unlawful conduct.
Employers must implement and effectively administer anti-harassment policies because the most effective way to reduce the risk of liability for sexual and other types of unlawful harassment is to keep it from occurring.
You can significantly reduce the risk of liability in sexual harassment cases by:
How can I protect my company from liability?
1) Implementing a written policy that addresses unlawful harassment, including sexual, racial and disability-based harassment, and sets forth a simple procedure for bringing such misconduct to your attention.
2) Ensuring that the policy is distributed to all employees and that receipt of such policy is acknowledged in writing. Further, the policy should be posted in visible locations (e.g., break rooms).
3) Ensuring that the policy provides every employee a way to present a grievance about perceived harassment. For example, who would address a harassment complaint raised by the secretary or assistant to the company’s chief executive officer? Many employers are designating an outside party (e.g., human resource consultants) as the place to file a complaint, with that outside party then investigating the matter and reporting its findings to the employer.
4) Educate supervisors about unlawful harassment, how to handle inquiries or complaints about such conduct, and how to gather initial information about such a complaint.
This information was provided by Daniel L. Bell, an employment attorney with Brouse & McDowell in Akron, Ohio. If you would like to contact Dan about the information provided above or any other employment-related issues, you may reach him at 1-800-837-5711. This information is not a substitute for legal advice. If you need advice on a specific legal issue, you should always consult with qualified legal counsel.
SACS Consulting and Investigative Services, Inc.
Tim Dimoff, Speaker, National Expert, Author:
These decisions make it clear that employers cannot avoid liability simply by putting a sexual harassment policy in place. To the contrary, avoiding liability will require a proactive approach that focuses on education for all employees, particularly managerial employees.