The Jackson Lewis ten step response to the new rules
on workplace sexual harassment
©Jackson; By Susan K. Krell (KrellS@jacksonlewis.com)
and Michael J. Soltis (SoltisM@jacksonlewis.com);
Susan K. Krell and Michael Soltis;
Jackson Lewis, 55 Farmington Avenue ~ Suite 1200,
Hartford, CT 06105;
Phone 860-522-0404; Fax 860-247-1300
This article is intended to provide general information
only. It is not intended as legal advice or as a solution to an individual
problem. You are encouraged to consult with appropriate legal counsel
prior to relying on this document in whole or in part.
The key to avoiding liability: Preventive policies
and training for managers and supervisors
In its landmark sexual harassment decisions, the Supreme Court has
issued two clear mandates to employers: First, take immediate, bold and
continuing steps to prevent harassment from occurring in the first place. Prevention is
the only "no liability" option since any tangible adverse employment
action flowing from the harassment results in automatic liability for
the employer. Second, use "reasonable care" promptly to prevent
and correct any sexually harassing behavior. If an employer does so and
an employee unreasonably fails to take advantage of those preventive
or corrective opportunities, an employer will not be liable for the harassment
if there has been no tangible adverse employment action. In these cases,
an employer's efforts at prevention and response are critical.
To enhance the ability to prevent sexual harassment claims,
to document those efforts, and to maximize the likelihood of an effective
response to a complaint, employers should consider immediately the following
preventive workplace measures:
1. Review your sexual harassment and anti-retaliation
policy.
A "zero tolerance" policy -- written in plain English
-- prohibiting sexual harassment and retaliation for complaining of harassment
is the linchpin in the prevention and defense of sexual harassment claims.
In developing an effective policy, an employer should consider incorporating
some or all of the following:
-
providing employees with convenient and reliable
mechanisms for reporting incidents of sexual harassment and retaliation,
and for participating in related investigations;
-
posting the name, work location and telephone number
of the employer representatives - both male and female - to whom
employees may make complaints of harassment and retaliation;
-
ensuring that at least one employer representative
is at the employer's facility whenever it is in operation;
-
encouraging employees to report incidents promptly
either verbally or in writing;
-
maintaining a 24 hour complaint hotline;
-
providing a timetable for reporting harassment, beginning
and completing an investigation, and responding to the complainant;
-
informing employees of the potential consequences
of failing to take advantage of the employer's preventive or corrective
opportunities;
-
informing employees - supervisors and non supervisors
alike - of disciplinary action that may be taken if they are found
to have violated the employer's policy.
2. Identify all supervisors and make them accountable
for compliance with the employer's sexual harassment and anti-retaliation
policy.
The Supreme Court held that employers are liable when a "supervisor" harasses
an employee over whom the supervisor has immediate (or successively higher)
authority. Take steps now so that you, rather than a jury, determine
who is and who is not a "supervisor." Include "commitment
to equal employment opportunity" as a qualification for every supervisory
position. Include in the appraisal process a criterion related to the
supervisor's handling of equal employment opportunity issues. Link the
evaluation of such criterion to the supervisor's compensation and career
opportunities.
3. Train all supervisors on sexual harassment prevention.
To take advantage of the Supreme Court's new affirmative defense,
an employer must prove that it took "reasonable care" to prevent
harassment and to correct promptly any sexually harassing behavior. Providing
effective sexual harassment prevention training for all supervisors enhances
an employer's ability to take advantage of this defense. But beyond this,
effective training will increase the likelihood that a supervisor will
not engage in sexually harassing conduct and that a supervisor will respond
appropriately to a complaint of harassment. All supervisors should be
required to attend such training. To emphasize its importance, a senior
manager should introduce the training.
4. Train non-supervisory employees on the sexual
harassment policy and the procedures to follow if they experience
sexual harassment.
By training non-supervisory employees, an employer breathes life
into its sexual harassment prevention policy. Such training enhances
an employer's ability to establish that it took reasonable steps to prevent
sexually harassing behavior. It also can help establish that an aggrieved
individual unreasonably failed to take advantage of the employer's preventive
and corrective opportunities.
5. Obtain a signed receipt when distributing the
sexual harassment policy.
Sometimes an employee does not remember or denies receiving
a copy of a sexual harassment prevention policy. When that happens, a jury
determines whether the employer communicated the policy. To remove any
doubt about dissemination of the policy, an employer should obtain and
retain a signed receipt from every employee to whom the employer distributes
a sexual harassment prevention policy.
6. Redistribute periodically (at least annually)
the sexual harassment policy and obtain updated receipts.
Remind employees periodically of the employer's policy prohibiting
sexual harassment by redistributing the policy, and obtain a receipt
each time. This will enhance the ability to prove an employee unreasonably
failed to take advantage of any preventive or corrective opportunities
provided by the employer.
7. Instruct appropriate managers on the guidelines
for conducting investigations of sexual harassment complaints.
While it is unlikely an employer can prevent all conduct which
might give rise to a complaint of sexual harassment, in some cases an
employer may avoid liability if it promptly and effectively investigates
the harassment complaint. Investigations into allegations of sexual harassment
are often difficult. Before any complaints are filed, give managers charged
with this responsibility guidance on how effectively to conduct and document
investigations.
8. Incorporate the sexual harassment policy into
new employee orientation.
With each new hire, an employer has an opportunity to establish
a record of taking reasonable care to prevent sexual harassment. With
each new hire - both supervisory and non- supervisory - an employer starts
with a "clean slate." By distributing the policy and incorporating
sexual harassment prevention into new hire orientation, employers may
reduce sexual harassment claims and strengthen their defenses if such
claims are brought.
9. Document efforts to prevent and correct harassment
and any employee's failure to take advantage of the opportunities
provided by the employer.
An employer can eliminate any dispute about its efforts to prevent
and respond to sexual harassment claims by documenting those efforts.
A complete record of the preventive program, its publication to all employees,
the training for managers and employees, all complaints received and
investigated, and any remediation also will serve to document any failure
by an employee to take advantage of the corrective opportunities provided
by the employer.
10. Assert the new affirmative defense in pending
or future sexual harassment lawsuits.
While the Supreme Court's decision provides employers with a
new defense to sexual harassment claims, employers must affirmatively
present and prove it. All pending sexual harassment litigation must reviewed
immediately to determine whether this affirmative defense has been presented
and pursued. Amending court papers or requesting additional discovery
may be appropriate. Also, consider raising this defense in other types
of employment discrimination cases, especially those involving harassment.
Consult Employment Counsel for Specific Advice
Using the Jackson Lewis Ten-Step Response will provide basic
guidance on what to do in light of the Supreme Court's pronouncements.
However, this is not an exhaustive list and not all items on this list
may be appropriate for every employer. As always, the success of any
preventive employee relations program depends on the commitment and creativity
of managers and supervisors. Additionally, each program must be tailored
to an employer's culture and resources.
Every employer should analyze how the new rules impact
existing sexual harassment prevention policies and procedures how they
should be modified. Additionally, with the new standard of liability,
employers must develop and implement sexual harassment prevention training
for all supervisors and managers. Finally, employers that previously
have not had a preventive program immediately must establish one that
incorporates all of the elements of the new affirmative defense and communicate
it to all employees.
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