How Can the Company Protect Itself From Liability for Supervisors Who Sexually Harass Employees?

The U. S. Supreme Court has ruled that employers are responsible for even a low-level supervisor's sexual harassment or other harassment of a person in a protected category (race, creed, religion, age disability, and sexual orientation) even if the employer (upper management) knew nothing about the harassment. The Court, however, did offer employers an affirmative defense to the claim if, but only if:

  1. The company has a strong policy against sexual harassment, harassment based upon being in some other protected category and discrimination;
  2. The company's policy is disseminated to all employees;
  3. The policy provides several avenues for an employee to report harassment or discrimination; and
  4. An employee fails to take advantage of any of the avenues of reporting so that management is prevented from investigating and stopping the harassment.

Be sure your handbook contains the appropriate policies and have every worker sign and return the documentation confirming that she/he has received the handbook and is responsible for knowing its contents. Keep the documentation in the employees' files, and post the policy in all break rooms. Also post the policy in the restrooms used by customers since an employer can also be liable for harassment by a customer or vendor if the company knows of the harassment and fails to take action. Even if no harassment exists, customers who see the poster will know you take good employee relations seriously. It also gives the customer avenues for reporting any adverse conduct she/he may have experienced. It is advisable to conduct annual employee training on issues of sexual harassment, harassment based upon being in some other protected category and discrimination. When you conduct training, be sure to keep a dated sign-in sheet for the training and have a special file for the sign-up sheets so they can be quickly located if the need arises. Prevention is your best defense. Your second best defense is good documentation of what you have done to try to prevent incidents.

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