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Published: 2008-03-26

Landmark Rulings Regarding Sexual Harassment

Two major decisions published by the Supreme Court last week, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, emphasize the importance for employers to have a formal written policy against sexual harassment, which is disseminated to all employees. The cases held that:
  • When a supervisor fires, demotes, fails to promote or otherwise punishes an employee for not giving in to a sexual request, the employer will be automatically liable, even if the employer is unaware of the supervisor's misconduct and has a strong anti-harassment policy.

  • An employer can be held liable for its supervisor's unwelcome and threatening sexual advances, even if the supervisor does not carry out his/her threats and the employee suffers no job-related harm.

  • An employer will be automatically liable for a hostile work environment created by its supervisor, unless the employer can show both that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and that the complaining employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided" by the employer.

Practical Tips
The message of these decisions is clear: employers must be proactive in policing sexual harassment in the workplace and serious when responding to employee complaints. Thus, an employer should:

  1. Re-examine its sexual harassment policy to make sure it contains:
    • An express, unequivocal statement prohibiting sexual harassment;

    • A definition of sexual harassment (with examples);

    • An easy, effective and sensible complaint procedure, designating persons to whom employees may complain (including persons other than an employee's direct supervisor);

    • A guarantee of no retaliation for making a complaint; and

    • A statement of tough corrective measures that the Company will take against sexual harassers.

  2. Recirculate its policy to all employees, at least semi-annually.

  3. Require employees to sign an acknowledgement that they have received a copy of the policy and have read and understand it.

  4. Hold awareness seminars periodically to educate employees about avoiding prohibited conduct, as well as the specifics of the sexual harassment policy and grievance procedures.

  5. Require managers to attend training seminars to better prepare them to handle employee complaints of sexual harassment.

  6. Consider having hiring, firing and promotion decisions made by a committee or group, rather than by simply one person.