HIGH COURT RULINGS STRESS THE
IMPORTANCE OF ANTI-HARASSMENT POLICIES
Two recent Supreme Court decisions (Faragher v. Boca Raton and Burlington Industries v. Ellerth) have markedly altered the standards by which employers may be held liable for workplace sexual harassment. As a result of the rulings in these two cases, employers may be held liable for sexual harassment by supervisors, even though the employer had no knowledge of it.
The key determination which must be made is whether or not the employee has suffered a tangible job detriment. If so, the employer will be held liable for the conduct of its supervisor, even if the employee never complained about the harassment, the employer had no knowledge of it, and the employer had an anti-harassment policy in place.
Additionally, employers may also be held vicariously liable in cases where supervisors have taken no adverse employment actions against subordinates, such as discipline or firing, but have threatened to do so without following through on the threat. In order for an employer to defend itself in these instances, the employer must establish that (1) it took reasonable steps to prevent or quickly correct any harassment through anti-harassment policies and an effective procedure for filing and resolving complaints; and (2) the accusing employee unreasonably failed to utilize any preventive or corrective opportunities.
Previously, employers could be held liable for harassment by supervisors only if the plaintiff could prove the employer was negligent in preventing or remedying the harassment, or where a supervisor used his or her authority to harm the employee in some way.
What does this mean for employers? Undoubtedly, we can expect to see a rise in the number of sexual harassment claims filed since the burden of proof has shifted to the employer. Employers are now exposed to a much broader liability for acts of sexual harassment committed by supervisory-level and other management employees.
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The court commented that the existence and enforcement of anti-harassment policies may be considered part of an employer's defense that it took reasonable care to prevent harassment. The importance of implementing and maintaining anti-harassment policies which provide employees with practical means for reporting harassment (including an avenue for bypassing the harassing superior) cannot be emphasized enough. These policies should include all forms of harassment, not just that which is sexual in nature. Employers' policies should be well known and distributed and should cover all forms of harassment. Employers should follow up to make sure the policies are understood and monitored by managers. Additionally, everyone should be trained in how to prevent harassment, including upper management.
We recommend all employers review their harassment policies, or have them reviewed by a qualified third party, to ensure that they are adequate. In order for these policies to comply with current guidelines, they should: (1) be given to all employees. Each employee should sign a statement that he/she has received the policy, read it, and understands it; and (2) provide employees with avenues for making complaints under the policy. Employees must be given more than one alternative for making a complaint. If an employee's supervisor is the one harassing him/her, the employee must be given a way to bypass this individual with a complaint. A piece of paper saying the company is opposed to harassment and any harassment should be reported is not going to be enough. Employers must create comprehensive policies and enforce them as well as check in with their workers now and then to make sure there are no harassment issues brewing under the surface. Obviously, employers cannot stop every instance of harassment, but they can take preventative measures to decrease the chances of harassment occurring in the workplace.
To have your harassment policy reviewed and/or updated, please contact your Account Executive or the PeopleSystems Helpline at (800) 234-4632, extension 288. Or Click here to use our on-line information request form.
