In real estate, the saying goes, it's all about location. In the law governing workplace sexual harassment, it's turning out to be all about training.
Employers often think that employees, particularly their managers and supervisors, can be trusted to behave sensibly in the workplace. While many do, court decisions in the area of sexual harassment plainly show that exceptions to this good-behavior rule are legion. Without periodic reminders and training, an employer may be liable for reckless conduct that should not occur, but too often does.
The U.S. Supreme Court sent a clear message about the importance of having anti-harassment workplace policies in two cases decided in 1998. Under those cases, an employer can be held liable for the unauthorized sexually harassing conduct of its supervisory employees unless it proves its own good faith effort to prevent such conduct. To make out this "affirmative defense," a defendant employer must prove both (a) that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and (b) that "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer."
Since those Supreme Court cases, further decisions have indicated the importance of using training to ensure that an employer's policies will provide an effective defense to "rogue" conduct by supervisors. A recent case decided by the Tenth Circuit Court of Appeals, whose decisions are binding on the Utah federal courts, underscores the importance of using employee training to convert sexual harassment policies from mere paper into daily practice. In Cadena v. Pacesetter Corp., a jury concluded the plaintiff had been sexually harassed by one of her supervisors, and awarded her $750,000 in compensatory and punitive damages, and over $130,000 in attorneys' fees. The supervisor's alleged conduct included offensive touching and even a suggestion that the plaintiff "flash her breasts" at a co-worker. The defendant employer had a clear written policy against sexual harassment. Nevertheless, when the plaintiff complained to her other supervisors, she was told she should just ignore the conduct, and also that "corporate headquarters" was aware of the offensive conduct, but would do nothing about it because the supervisor "made too much money" for the company.
Worse, when the company's corporate human resources representative conducted an internal investigation of the sexual harassment allegations, she did not interview the plaintiff and acknowledged at trial that she was even unsure of the specifics of the charge. She also conceded that at the time she conducted her inquiry, "she believed that a male supervisor would not commit sexual harassment if he either exposed his genitalia to a female subordinate or grabbed her breasts, so long as he apologized after the incident." By the time of the trial, the human resources representative had received better training, but it occurred far too late to assist the employer in defending the charge.
As the Cadena case illustrates, effective sexual harassment training, timely moving an employer's policies from paper into daily workplace behavior, is the only wise course available to employers.