By now, most business and human resources professionals have seen or heard about the recent landmark decisions by the Supreme Court on sexual harassment. In essence, the Supreme Court has said that companies will be strictly liable for any sexual harassment by a supervisory employee, regardless of the type of harassment, i.e., quid pro quo or hostile environment, where the victimized employee suffers a "tangible employment action." A tangible employment action can be a termination, demotion, undesirable reassignment or any other employment decision adversely affecting the employee. Where the employee can prove sexual harassment by a supervisor, and show a tangible employment action, the employer will have vicarious liability for the supervisor's actions.
However, the Court did hold out a ray of hope to employers. It created an "affirmative defense" for companies if the employer can show that it took reasonable steps to prevent sexual harassment and to promptly correct it, and where an employee unreasonably failed to take advantage of any internal procedures created for the purpose of allowing employees to complain, before the sexual harassment culminated in a tangible employment action.
What does all of this mean, and how can an employer position itself to take advantage of this affirmative defense? The following suggestions, while not intended to provide specific legal advice, should help strengthen an employer's ability to claim the defense:
1. Develop a Comprehensive Written Policy. If your company has a policy on sexual harassment, have it reviewed. The policy should be clear and concise. It should set forth the company's "zero tolerance" for all forms of sexual harassment, and help employees understand what sexual harassment is, and how to recognize it. It should also establish a readily available procedure for employees to come forward with complaints even if the sexual harassment has not been directed against them. The complaint procedure should allow employees to bypass their supervisor and should assure employees that there will be no retaliation. In light of a recent Supreme Court decision, the policy should make clear that it covers all employees, male and female, including same sex harassment.
2. Disseminate the Policy to all Employees and New Hires. Have them sign a receipt acknowledging that they have been given the policy, much as most companies now do for employee handbooks. Post a copy of the policy in a conspicuous location in the workplace. Annually thereafter, remind employees about the company's policy and the complaint procedure. Also, include information about the company's sexual harassment policy in all new employee orientation programs.
3. Provide Training to all Supervisors on Sexual Harassment. The training should include at least the following: how to recognize sexual harassment; how to respond to complaints; how to report sexual harassment; and reaffirm the company's policy, including reminding supervisors of the consequences for violating the policy. Periodically, this training should be repeated.
4. Monitor Supervisory Behavior in the Workplace. There are several possible ways to do this, but everyone in management needs to be observant about possible violations of the company's policy and the company needs to take prompt action to correct any inappropriate behavior. In addition to simply being observant, employers could consider other specific techniques. For example, some companies use a 360 degree evaluation procedure that solicits feedback from subordinates. Another variation might be to develop a mechanism to allow employees to submit, in confidence, comments about their supervisor as part of their annual appraisal process. Finally, exit interviews can be very useful in helping to discover the existence of problems at a time when the employer may still have a last chance to do something about them. (Also monitor the behavior of co-employees and third parties. Companies can be liable if it can be shown that the employer knew or should have known of the harassment.)
5. Require that Important Employment Actions, Such as Terminations, Promotions, Demotions, etc. be Reviewed and Approved by Someone Other than the Immediate Supervisor. This can be very helpful in breaking the nexus between the supervisor's alleged harassment and the actual employment decision.
6. Treat all Complaints Seriously and Promptly Investigate, Even if the Employee Says He or She Does Not Want Anything Done. Investigations often can best be handled by an independent outsider, such as legal counsel. This can offer the additional advantage of cloaking the investigation in the attorney/client privilege. Train all employees to report any harassment they observe, even if it does not involve them directly. Treat matters confidentially and respect the privacy of all parties. Find out what remedy the "victim" desires, and keep the employee informed about the investigation and any conclusions. Take prompt and effective corrective action whenever there is evidence that sexual harassment has occurred.
7. Other Forms of Harassment. Although not addressed by the recent Supreme Court cases, consideration should be given to expanding a company's sexual harassment policy to cover other forms of harassment. An argument can be made that the same affirmative defense should be available in a case of racial harassment, for example, where the employer has an anti-harassment program, the employee has not taken advantage of it, and there have been no tangible employment actions taken against the employee.
8. Alternative Dispute Resolution. Consider adopting an ADR program. This can take many forms, from voluntary mediation to binding arbitration. ADR allows cases to be handled quickly, confidentially and cost effectively. It can also help keep employers out of court, out of the press, and away from juries.
9. Document, Document, Document!!! The Court places the burden of proof on the employer to demonstrate that it has taken reasonable steps to prevent sexual harassment in the workplace. Companies need to document what they have done so that they have tangible proof to offer in any litigation. Create the paper trail of your preventive actions and efforts to police the workplace.
While the Supreme Court certainly has made it more difficult for employers to prevail in cases of supervisory sexual harassment, the savvy employer who takes the steps noted above will be in the best position to invoke the affirmative defense created by the Supreme Court. In addition, an employer's failure to take steps like those described above can be used offensively by an employee in litigation to demonstrate to a jury an employer's lack of concern about this important issue. Finally, even where the law prevents an employer from completely shielding itself from liability by virtue of the affirmative defense, the proactive employer, who genuinely has taken all reasonable steps to prevent sexual harassment from occurring, will still have very useful evidence that it can offer to help limit, in some cases substantially, an employee's claim for damages.