Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events
The floodgate of sexual harassment allegations spawned by the #MeToo movement is evidence that employers have dropped the ball on fostering work environments free from inappropriate sexual behaviors. The good news is, there are three simple steps employers can take to begin preventing workplace harassment from occurring — and potentially avoid liability if legal action ensues.
The courts have created a safe harbor defense available in most instances to employers who can show they acted reasonably to prevent the occurrence of workplace harassment. Although most employers have implemented written policies prohibiting sexual harassment, merely disseminating such policies falls short of the actions courts require to invoke the safe harbor defense. Rather, employers must show that their anti-harassment policies are far more than paper documents, but are part of a program enforced through consistent practice and employee training. Employers may qualify for the defense if they undertake three actions.
Action 1: Distribute an Anti-Harassment/Complaint Policy
This policy should define sexual harassment, describe the complaint procedure for employees claiming violations, and reassure employees that they will not be retaliated against for airing a complaint.
Action 2: Conduct Periodic Training
Both management and staff should attend periodic company-sponsored anti-harassment/sensitivity training. The frequency of training depends upon factors such as company size, employee turnover rates, frequency for which employees assume new supervisory roles and the number of harassment complaints. Biannual training is recommended for most employers. Moreover, the U.S. Equal Employment Opportunity Commission has recommended that the training be live as opposed to online.
Action 3: Take All Complaints Seriously
Regardless of whether complaints are initially deemed credible, conduct a prompt, thorough and fair investigation into allegations. If a violation is found, take appropriate remedial measures aimed at ending the offensive conduct. Depending on the gravity of the offense, these measures can include written warnings, suspension, demotion, transfer, termination or other punitive measures.
Finally, employers should be prepared to demonstrate a strong commitment — beginning at the highest levels of management — that harassment will not be tolerated. Organizations also should implement monitoring mechanisms to test the efficacy of anti-harassment programs (e.g., period employee surveys).
Workplaces that implement these measures are less likely to experience incidents of workplace harassment. That said, should an incident occur and litigation ensue, the court may find the employer acted reasonably to prevent harassment and, thus, may not be found liable. Conversely, if these actions are in place and the employee fails to invoke the internal complaint procedure before filing a legal action, the court may dismiss the complaint because the employee failed to uphold his or her end of the bargain by according the employer an opportunity to resolve the complaint internally.
While employers can’t completely insulate themselves from liability, harassment victims are far less inclined to seek legal recourse if they believe their employer did everything in its power to foster a harassment-free environment as well as took necessary action to effectively address and punish perpetrators of these behaviors.
Originally published by WorldatWork in WORKSPAN DAILY, JUNE 15, 2018.