Sexual Harassment an Ounce of Prevention

Most employers are aware that reports of sexual harassment must promptly and thoroughly be investigated. Where appropriate, prompt remedial action must be taken to end the harassment. Are there any proactive steps that an employer can take to limit its liability in the event of a claim of sexual harassment?

One of the most important pieces of evidence in any sexual harassment case is the employer's policy on sexual harassment. However, even the least tolerant, most heavy-handed policy means nothing unless the Company's employees are aware of the policy and understand it. Employers are frequently embarrassed to learn — at a deposition — that the Company's employees have never read the Company's sexual harassment policy (or any other policy, for that matter, other than the most important on vacation and holidays).

One of the best preventive remedies, used by only a small minority of employers, is sexual harassment training. The benefits of training are twofold. First, employee sexual harassment training teaches employees the types of conduct which constitutes sexual harassment and teaches them what to do in the event they, or their co-workers, believe they are being harassed. Second, sexual harassment training may become a persuasive piece of evidence which can be used by an employer in court to show that the employer did everything it could to prevent and/or eliminate sexual harassment in the workplace.

There is no explicit requirement in federal law that an employer conduct any such program. However, the EEOC's Guidelines on Discrimination Because of Sex suggest that employers "affirmatively [raise] the subject" of sexual harassment and develop "methods to sensitize all concerned." That spells training.