by Jackson Lewis
Jackson, Lewis, Schnitzler & Krupman, a national law firm representing
management in labor, employment and benefits law matters, has developed a ten step
response to the new U.S. Supreme Court cases.
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. 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:
- Providing employees with convenient and reliable mechanisms for reporting incidents
of sexual harassment and retaliation, and for participating in related investigations;
- Posting the name, work location and telephone number of the employer representatives,
both male and female, to whom employees may make complaints of harassment and retaliation;
- ensuring that at least one employer representative is at the employer's facility
whenever it is in operation;
- encouraging employees to report incidents promptly either verbally or in writing;
- maintaining a 24 hour complaint hotline;
- providing a timetable for reporting harassment, beginning and completing an investigation,
and responding to the complaint;
- informing employees of the potential consequences of failing to take advantage
of the employer's preventive or corrective opportunities;
- informing employees, supervisors and non-supervisors alike, of disciplinary action
that may be taken if they are found to have violated the employer's policy.
2. Identify all supervisors and make them accountable for compliance with the
employer's sexual harassment and anti-retaliation policy.
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. Incorporate into 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 in
the first place that a supervisor will not engage in sexually harassing conduct and
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 trtaining 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 becomes an issue in a lawsuit, 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 nonsupervisory, 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 Step 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 must establish one that incorporates all of the elements of the new affirmative
defense and communicate it to all employees.
If you have questions about these new cases concerning workplace sexual harassment,
you may contact Margaret Bryant, Esq., Jackson, Lewis, Schnitzler & Krupman,
at 914.328.0404 or by e-mail at [email protected].