How should you respond to the recent verdicts in Burlington Industries, Inc. vs. Ellerth and Faragher vs. City of Boca Raton? Here are seven points of action in executing the Supreme Court’s new directives mentioned in “Sexual Harassment:New Rules, Higher Stakes” (Workforce, October 1998).
1. Develop an anti-harassment policy.
A thorough anti-harassment policy, including simple complaint procedures, is critical. An effective, easily understood policy is fundamental to the employer’s defense that it exercised reasonable care to prevent unlawful harassment.
The Supreme Court in the Faragher case stated that an anti-harassment policy with complaint procedures would constitute “a significant factor” in meeting the first element of the employer’s defense. A stand-alone anti-sexual harassment policy is acceptable, provided a broader, unlawful harassment policy also exists.
2. Distribute the policy.
Once an anti-harassment policy is generated, the employer should disseminate it to all employees. Of course, managers and employees at all levels need to know that the policy exists and how to follow the specific procedures in the event of concerns or complaints about sexual harassment. Too many employers still maintain these policies only in management binders or on corporate office shelves.
Current policies can be placed on an organization’s intranet and can be available 24 hours a day. Encrypted computer signatures can validate that the policy has been received. However, for most employers, a signed paper copy of the policy will still be the most efficient method of insuring that each employee has received it.
3. Conduct training.
The unequivocal message from the Supreme Court is that employers must act affirmatively to prevent sexual harassment. When they do, they may raise such acts as an affirmative defense in a lawsuit. For this reason, all employers should revisit their overall sexual-harassment prevention plans and adopt more effective, enlightened, practical and consistent training programs.
One of the most effective and proactive ways to prevent sexual-harassment lawsuits is to teach employees about the specific conduct prohibited, and to inform them that they will be held personally and individually accountable for such behavior.
It is important now, more than ever, that supervisors receive training that outlines the conduct that may constitute sex harassment and that they receive a strong message that their employer will not tolerate acts of harassment.
However, the best means of preventing unlawful harassment and laying a strong foundation for the affirmative defenses—as outlined in the Ellerth and Faragher cases—is to ensure that all employees attend comprehensive, periodic “awareness training.”
When the employer takes the matter seriously enough to launch a well-planned investigation, and communicates the plan and related policies to the victim prior to the investigation, risks of further claims and eventual liability are reduced.
Such training should incorporate both practical information and legal interpretation as to why and how harassment complaints arise, definitions of prohibited conduct in plain terms, and a delineation of complaint procedures that leaves no doubt as to the appropriate means for victims to obtain assistance and relief. Managers, supervisors and human resources representatives should additionally receive appropriate training on how to effectively implement an employer’s response mechanisms, from communication of the initial complaint or concern (no matter how informal) to investigating and executing corrective action.
Practical and interactive management-level training on handling typical challenges, such as uncooperative victims, the impact of consensual relationships and a lack of corroborating evidence in “he said-she said” situations is vital. Training on the issue of individual liability under state law can also be a very important tool to establish an initial interest among employers and supervisors in avoiding prohibited conduct.
Ideally, training programs should be reevaluated to insure that they cover more than just sexual harassment prevention. Other unlawful conduct in the workplace is equally unacceptable and also creates potential liability.
4. Audit employment decisions.
Every employer should heed the Supreme Court’s focus on “tangible employment actions” by ensuring that all such actions are subject to internal “checks and balances” before implementation. This review may be performed by human resources personnel or other experienced managers to ensure that no illegal actions are involved. This is a good way to limit the employer’s vicarious liability in situations where tangible employment action is an issue.
5. Promptly investigate.
Prompt investigation of harassment claims is critical. An employer’s indecisive action, or failure to exercise unambiguous leadership in this context, will neither correct unlawful behavior nor establish the affirmative defense that it exercised reasonable care and promptly corrected any inappropriate behavior. An effective investigation includes planning and coordination with human resources.
Experience has shown that when the employer takes the matter seriously enough to launch a well-planned investigation, and communicates the general plan and related policies (including no retaliation) to the victim prior to the investigation, the victim is reassured, and risks of further claims and eventual liability are reduced.
Finally, a thorough, accurate and factual documentation is a key factor in accomplishing the best possible outcome. Only well-trained employees or third parties should be charged with this responsibility because such investigations require outstanding listening and communication skills, as well as scrutiny and interpretation of complex human interactions. Incomplete, inaccurate or biased investigations can actually deepen both the problem and the employer’s liability.
6. Take prompt and effective remedial action.
After concluding that inappropriate harassment has likely occurred, an employer must take prompt remedial action that is reasonably designed to stop the harassment. The Ellerth and Faragher decisions emphasize the duty of the employer to promptly correct any unlawful behavior. While the victim is not entitled to decide the appropriate response, his or her wishes may be taken into consideration.
To avoid claims of retaliation, the victim should not be required to transfer or change jobs to resolve the situation. The threat of retaliation suits is great in this context, and must be aggressively addressed by reiteration of the employer’s “zero tolerance” policy at appropriate intervals throughout the process.
7. Follow up on remedial measures.
The employer should always check back with the victim after remedial action has been taken to make sure that it was effective in resolving the harassment. Periodic monitoring and follow-up questions should also be documented, and the victim’s feedback should be documented, as well.
At this stage, it is also a good idea to reaffirm the employer’s anti-harassment policy with all employees involved in the investigation, including the accused, the accuser and any witnesses. Copies of the policy should be distributed to such persons as a matter of course. Under appropriate circumstances, immediate training focused on any weak areas of the employer’s prevention or response plan is recommended.
Workforce Extra, Octber 1998.
