MINIMIZE WORKPLACE SEXUAL HARASSMENT LIABILITY: INSTITUTE HARASSMENT POLICY AND COMPLAINT PROCEDURES AND TAKE REMEDIAL ACTIONS By Christopher C. Conner, Esq. Mr. Conner There are two kinds of sexual harassment that may occur in the workplace and should be of concern to all employers. The first is referred to as hostile work environment and may be defined as a pervasive and regular harassment which unreasonably interferes with an individual's ability to perform his or her job duties, or creates an intimidating, hostile or offensive workplace atmosphere. This type of harassment may involve supervisors, co-workers or third parties such as independent contractors. Evidence to support a claim of hostile work environment may include exposure to pornographic or nude pictures, drawings or cartoons, sexual jokes, innuendo or comments, physical touching, propositions, requests for dates, leering, teasing or graphic gestures. The second type of sexual harassment is referred to as quid pro quo which literally means "this for that," a specific demand for sexual favors in exchange for job security or job benefits. This type of sexual harassment must involve a supervisory or managerial employee. Court decisions are clear that employers are liable when supervisors engage in quid pro quo harassment; however until recently, courts were divided as to when employers could be liable for hostile work environment harassment created by supervisors or managerial employees. In several recent decisions, the Supreme Court has set forth parameters for this type of harassment. Businesses, companies and corporations are advised to react to these definitive decisions by implementing a clearly worded sexual harassment policy and effectively communicating that policy to all employees. It is also essential for businesses to consider sexual harassment awareness training for supervisors who may be required to investigate complaints of sexual harassment. A WRITTEN HARASSMENT POLICY WITH EMPLOYEE NOTIFICATION The first step is to develop a written policy prohibiting harassing conduct and to make sure it is disseminated to all employees. By having a sexual harassment policy, an employer will be in compliance with EEOC guidelines, and all employees will be notified that certain types of conduct are in violation of the policy of the employer. ESTABLISH A COMPLAINT PROCEDURE After a sexual harassment policy has been developed, a harassment complaint procedure must be implemented so employees can register an appropriate complaint. Courts will look to whether an employer has a mechanism in place to report allegations of sexual harassment and whether the employer has those allegations promptly and effectively investigated. The Supreme Court has concluded that evidence that an employee unreasonably failed to use a complaint mechanism provided by the employer would 'normally suffice' to provide the employer with a defense to liability. Again, it is fundamentally important that the complaint procedure be known to the victim. This procedure should be part of the sexual harassment policy, and it should be published and disseminated to all employees. It's important to note that even though a complaint procedure is in place, an employer's obligation to investigate and remedy harassment arises when a managerial level employee knows, or has reason to know, about the harassment. An employer cannot wait until a complaint is registered before liability may arise. Harassment which is apparent to all others in the workplace, or which is open and obvious to supervisors and management, may be sufficient to place the employer on notice that harassment has occurred. TAKE ACTION TO PREVENT FURTHER HARASSMENT The last step the employer must take to assure avoidance of liability is to initiate remedial action. After an appropriate investigation, an employer must take such action which is reasonably calculated to prevent further harassment. If the employer takes this final step, there may indeed be no liability at all. There is no easy way to avoid harassment liability in the workplace, but by following these suggested loss control steps, any business, company or corporation can avoid unwanted and costly litigation. Businesses need to be fully informed about sexual harassment and need to develop policies, implement complaint procedures, inform and train employees and take remedial actions to insure that their workplace complies with recent court decisions on the subject. Attorney Christopher C. Conner is Coordinator of Corporate & Commercial Litigation at Mette, Evans & Woodside. Back to Top

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