Update on Sexual Harassment

With all the talk of sexual harassment in the workplace over the last few months, many employers are concerned about harassment claims at their own business.  Not only does workplace harassment have a significant negative impact on employees affected, but any lawsuits filed in response to harassing behavior can be costly – they cause morale issues in the workplace, take time and resources away from key personnel to respond to the lawsuit, and cost the employer in defense costs and possible adverse judgments.  Taking a few key steps to prevent harassment from occurring in the first place, thus preventing harassment claims, is essential for every employer.

Over the last 20 years, the courts have laid out specific criteria for what they consider to be reasonable efforts to prevent harassment.  This includes having a comprehensive sexual harassment policy that both provides for multiple reporting procedures (so the employee can bypass a harassing supervisor) and requires supervisors to report up any complaints of harassment.  Employers should not over-complicate the policy by requiring strict formal reporting process (i.e. only accepting written reports).  Another important part of showing that an employer has taken reasonable steps to prevent harassment is training all employees on the policy, and training supervisors on how to respond to and investigate harassment complaints.  Anti-retaliation provisions should also be stressed in the written policy and as part of the training.  In addition to taking reasonable steps to prevent harassment, employers must promptly and effectively respond to and remedy any complaints of harassment.

These steps form the basis for an affirmative defense to harassment claims.  This means that if a harassment claim does arise, an employer may be able to reduce – or altogether avoid – legal liability if they can show they followed these simple steps.

The Equal Employment Opportunity Commission has also provided guidance to what constitutes “reasonable” efforts to prevent sexual harassment.  The EEOC recommends “periodic” training, which has been interpreted as being at least on an annual basis.

With sexual harassment being in the forefront in the news, this is a good time for employers to review (or establish) their sexual harassment policy, making sure it meets the above criteria.  Employee and supervisor training should also be scheduled.  All complaints should be taken seriously and investigated, and measures taken to provide effective remedy where warranted.  Above all, any workplace should strive to maintain an environment where employees feel comfortable coming forward with any type of complaint, without fear of retaliation.  Open dialog and fostering a culture of respect are the best ways to avoid harassment from occurring, which is the best defense of them all.