How Can Employers Protect Themselves Against Liability Arising From Claims of Sexual Harassment?

Workplace harassment remains a harsh and unavoidable reality for employers. Given the recent #MeToo movement, employers can expect to see a continued rise in complaints concerning harassment, specifically sexual harassment. Although no guidelines can define sexual harassment with complete clarity, unwelcome sexual advances, requests for sexual favors, and other physical, verbal or visual conduct based on sex constitutes sexual harassment when:

1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or;
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual, or;
3. Such conduct has the purpose or effect of interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

Sexual harassment may include, but is by no means limited to, explicit sexual propositions, sexual innuendo, suggestive comments, sexually oriented kidding, teasing or practical jokes, jokes about gender-specific traits, foul or obscene language or gestures, display of foul or obscene printed or visual material, and physical contact such as patting or pinching. In addition, under certain circumstances, even harassing conduct of a non-sexual nature can constitute unlawful sexual harassment if that conduct is directed at an individual solely on the basis of his/her gender. When such gender-based conduct creates an intimidating, hostile or offensive working environment, it also falls within the definition of sexual harassment.

Solution: Promulgate and Support an Active Anti-Harassment Policy and Workplace Environment.

Anti-discrimination laws provide a “safe harbor” that in some cases will afford protection to an employer who takes the following preventative steps:

• Adopt a Written Anti-Harassment Policy: Adopt a written policy stating that there shall be no unlawful discrimination in word or deed against an employee or applicant for employment. The policy should make clear that all employees should be able to enjoy a work environment free from all forms of unlawful discrimination and harassment, including but not limited to, sexual harassment.
• Reporting Harassment: Employers should encourage the reporting of incidents of harassment, regardless of whether the reporter is the victim of the harassment or just witnessed or heard about the incident, regardless of who the offender may be, and regardless of whether the incident occurred at a client site or other location where he/she was engaged in work duties for the company.
• Conduct Training: Workplace sensitivity training helps to ensure that everyone in the workplace is respected and treated appropriately. It further educates about behaviors that may be unacceptable/offensive, and encourages staff to come forward with complaints so that the employer can take remedial action.
• Investigation of Harassment Complaints: There can be no informal complaints of harassment. All supervisors or managers are obligated to immediately report all alleged incidents (whether reported by the victim, personally observed, or bought to his/her attention by a third party) to the proper management staff so that the allegations can be fully investigated in a timely manner. The employer is responsible for conducting a prompt and thorough investigation into all allegations of harassment.
• Corrective Action for Violations: If it is determined that an individual engaged in any form of harassment, the employer should undertake appropriate remedial measures aimed at eradicating the offensive behaviors from the workplace. If the offender is an employee, appropriate disciplinary action should be taken, up to and including termination.

If you have any questions about sexual harassment in general and/or how to protect your company from liability arising from sexual harassment claims, please contact our office directly.