The Jackson Lewis Ten Step Response to the New Rules on Workplace Sexual Harassment

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:

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 be 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 Point 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 programs and policies and 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.