Liabilities and defenses for sexual harassment

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1 Liabilities and defenses for sexual harassment Liabilities and defenses for sexual harassment Resource kit By Jill R. Muratori, Esq. The U.S. Supreme Court issued two ground-breaking decisions on June 26, 1998, that dramatically affect employers' potential liability for sexual harassment. The cases are important because they expand the grounds on which an employer can be held responsible for sexual harassment. The decisions, however, also provide employers with important methods for defending themselves against sexual harassment claims. No change in what constitutes sexual harassment The decisions did not change what general actions constitute sexual harassment. Sexual harassment can still be characterized as unwelcome sexual advances or other verbal or physical conduct of a sexual nature that affects a person's employment, interferes with an individual's work performance or creates a hostile or offensive work environment. Sexual harassment can be as straightforward as a supervisor telling a subordinate to "have sex with me or your fired" (known by lawyers as "quid pro quo" sexual harassment), or as complicated as being subjected to a workplace that is offensive and intimidating or interferes with work performance due to unwelcome sexual conduct (known as "hostile work environment" sexual harassment). What the decisions of the Supreme Court did change, however, is the circumstances under which employers can be held responsible for the sexually harassing conduct of their supervisors. The U.S. Supreme Court decisions The court ruled on two cases and essentially decided that employers can be held liable if one of their supervisors sexually harasses a worker, even if the employer does not know of the supervisor's harassing conduct and the employee does not suffer any tangible loss (such as termination or demotion). In the first case, Burlington Industries vs. Ellerth, an employee suffered no concrete detriment to her job as a result of the sexual harassment of her supervisor. In fact, she was promoted, but chose to quit her job due to the stress she suffered as a result of the harassment. Despite Burlington's arguments that it had a sexual harassment policy and Ellerth did not inform the company of the harassment, the Supreme Court ruled that the sexual harassment claim could proceed. The second case, Faragher vs. Boca Raton, dealt with an employee who was subjected to harassing conduct by two of her supervisors. She quit her job and sued the city, which argued it was not liable because it had no knowledge of the activity. The court also allowed this lawsuit to stand.

2 While the court in these cases did set forth a broad theory of employer liability for the harassing activity of supervisors, it did specify defenses an employer may assert in response to a sexual harassment lawsuit. When an employer has no defense and is automatically liable The Supreme Court ruled that employers will be held strictly liable and have no defense available when an employee can prove that a supervisor's sexual harassment culminated in a tangible employment action that inflicted direct economic harm on the subordinate. For example, if an employee is terminated, demoted or passed over for a raise in connection with a supervisor's harassing conduct, the employer is automatically liable for that supervisor's conduct. The fact that the employer has promulgated and enforced a policy against harassment and has no knowledge of the harassing conduct is irrelevant in cases where an employee suffers a job detriment in connection with the harassment. This is a significant departure from some existing case law, which held that an employer that did not know of harassment in the workplace (and reasonably would not have known of it) was not liable for the damages suffered by the employee. When an employer has a defense against liability The most important aspect of the decisions to employers is the court's ruling that, in cases where an employee has not suffered an adverse employment action from the alleged sexual harassment, employers may assert a defense to the harassment claim based upon two elements: 1) the employer used reasonable care to prevent and promptly correct any sexually harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. The decisions make it very clear that an employer's human resources practices will serve as the foundation of an employer's ability to use this defense. The court noted that whether an employer adopted an effective "antiharassment policy with complaint procedure" is a key factor in proving the first element of the defense. With respect to the employee's obligation to tell the employer of a problem, the court held that an employer proves this second element of the defense when they show that the employee failed to complain through the available company channels. Need for anti-harassment policy In light of these decisions, all employers should adopt and communicate an effective sexual harassment policy. An employer that fails to do so can expect to be held liable for any sexually harassing conduct of its supervisors, whether or not the victim suffers any adverse employment action. These anti-harassment policies should: 1) define sexual harassment; 2) prohibit sexual harassment as a matter of company policy; 3) identify internal company mechanisms for complaints; 4) allow employees to submit complaints beyond their supervisor; and

3 5) prohibit retaliation against complaining parties. (A sample anti-harassment policy can be found at the end of the resource kit.) Copies of a company's anti-harassment policy should be distributed to all employees on an annual basis and to new employees at the commencement of their employment. Employers should document that each employee has received a copy of the policy. Additional steps to minimize employer liability To minimize their exposure to sexual harassment lawsuits, employers should go beyond simply communicating an anti-harassment policy to all employees. Additional steps employers should take include: 1) instituting a "zero-tolerance" program against discrimination and harassment; 2) instituting an open-door internal complaint procedure to review complaints promptly and objectively and take appropriate remedial action; 3) regular training (and documenting that training) of supervisors regarding appropriate workplace behavior and enforcement of the company's zero tolerance program against discrimination and harassment; and 4) utilizing an exit interview for all employees leaving the company for any reason. The bottom line These rulings raise the stakes on employers whose sexual harassment prevention practices are undeveloped or ineffective. At minimum, employers should develop a policy against sexual harassment, communicate it to all employees, and strongly enforce the policy when harassment arises. These actions are not just legal requirements they are good business policy. Sample sexual harassment policy and investigation procedure Company employees have a right to work in an environment free from all forms of discrimination and conduct which can be considered harassing, coercive or disruptive. Harassment of a sexual nature, in any respect, will not be tolerated by the company and is prohibited at the workplace or while conducting company business, even if off-site. Such harassment is defined as unwelcome sexual advances, requests for sexual favors, and any other verbal, visual or physical conduct of a sexual nature when: 1) submission to or rejection of this conduct by an individual is used as an explicit or implicit factor in employment decisions affecting the individual; or 2) this conduct substantially interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. Examples of sexual harassment may include, but are not limited to: unwanted sexual advances; unsolicited remarks; gestures or physical contact; display or circulation of written material or pictures derogatory to either gender; or personnel decisions based upon an employee's response to sexual-oriented requests. Women or men may be victims of sexual harassment.

4 Every employee of the company is responsible for seeing that no other employee is subjected to any form of sexual harassment. Should a supervisor become aware of the occurrence of sexual harassment, irrespective of whether the affected employee files a written complaint, it is the responsibility of the supervisor or manager to see that appropriate action is taken to eliminate such harassment and rectify the situation. Individuals who believe they are being subjected to sexual harassment should, whenever possible, let the alleged offender know that the actions are unwelcome. Whenever an individual believes he or she is being sexually harassed that individual is strongly encouraged to bring the matter to the attention of a supervisor or other management personnel pursuant to the procedure noted below. The following procedure will be followed when there is any indication that sexual harassment is taking place. 1) An employee who raises a question or concern regarding harassment will be encouraged to file a written complaint with his or her immediate supervisor. The personnel manager should immediately be notified by the supervisor that a sexual harassment complaint has been filed. If the complaint concerns the immediate supervisor, it should be filed with the personnel manager or with [identify alternate management officials who can receive complaints] if necessary. 2) In the event a supervisor or manager is aware of an occurrence of sexual harassment, but discovers that no complaint has been filed by the affected employee and that the employee is unwilling to file a complaint, the supervisor or manager should immediately notify the personnel manager. 3) The personnel manager will promptly investigate all sexual harassment complaints. This will include, but not be limited to, interviewing the complaining party, supervisors and any other personnel, as required, to obtain sufficient factual information upon which to make a determination. An employee believed to be affected by sexual harassment but who has not filed a complaint shall be notified immediately that an investigation is under way. Confidentiality will be maintained throughout the investigation to the extent practical and appropriate. 4) If at the conclusion of the investigative procedure it is found that sexual harassment, in fact, has occurred, the personnel manager will report the findings, along with a recommendation, to the appropriate management officials. Individuals found to have committed sexual harassment will be subject to discipline commensurate with the relevant circumstances. This discipline may include, but not be limited to: formal reprimand; referral to counseling; financial penalties; reassignment; suspension without pay; or termination. The affected employee will be advised as to the final disposition of the investigation. Allegations of sexual harassment are extremely serious, and employees who are found to have made false allegations also may be subject to discipline. 5) The company will not retaliate in any way against an individual who makes a complaint of sexual harassment, nor will it permit any employee to do so. Retaliation is a serious violation of this policy and should be reported immediately. Any person found to have retaliated against another individual for reporting sexual harassment will be subject to the same disciplinary action provided for sexual harassment offenders. This policy will be disseminated to all employees and will be prominently displayed at the company. All supervisors are responsible for knowing of its existence and substance, and of their responsibility for its implementation. If you have any questions about this company policy or the procedure for investigating possible workplace sexual harassment, please contact [personnel manager]. 8/04 PIA your best source of information

5 With respect to all information found in this communication, PIA of Florida and its directors, officers, members, or employees make no warranty, express or implied, or assume any legal liability or responsibility for the accuracy, completeness, or usefulness of any information contained therein. PIA of Florida does not warrant that the information or services will meet any specific requirements; nor will it be error-free or uninterrupted; nor shall PIA of Florida be liable for any indirect, incidental, or consequential damages sustained or incurred in connection with the use of information in this communication. Under no circumstances will PIA of Florida be liable for any loss or damage caused by anyone's reliance on information contained in this communication. 1-05

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