Sexual Harassment and Discrimination For Employer & Employee  The Supreme Court on June 26,1998, made employers more liable for incidents of sexual harassment. Ruling on two sexual harassment cases, Faragher v. City of Boca Raton, and Burlington Industries Inc. v. Ellerth, the Supreme Court basically stated that the employer is responsible for the actions of the supervisor, even when the employer is unaware of the supervisor’s behavior. An employer can no longer claim that they did not know about the sexual harassment because the employee did not inform them, nor can they claim that they were unaware of the supervisor’s behavior.	"Employers must be  proactive in order to  avoid a sexual  harassment lawsuit." Steps Employers Can Take to Avoid Sexual Harassment Lawsuits 1.) If your company does not have a sexual harassment/discrimination policy, get one fast! The policy should communicate that the company is taking a "zero tolerance" approach toward sexual harassment. Have an attorney review it, and make sure it gets out to all your employees either through the employee handbook or in memo form. Have the employees sign it to acknowledged that they received and read the policy. The policy should be verbally communicated to all new employees, and can even be posted in the workplace. If you have employees whose primary language is not English, have your sexual harassment policy translated or communicate to them in their primary language. 2.) Provide different routes that employees can take to file complaints; i.e., calling a hotline, contacting the human resource department, or by contacting their supervisor. Also the employee should have the option of talking with a male or female company representative. 3.) Conduct sexual harassment training, even if it is only composed of reading material or watching a video, something is better then no training at all. 4.) Conduct yearly meetings with your supervisors to review the sexual harassment policy, and to make sure that they understand that an employee does not need to suffer negative consequences in order to make a claim of sexual harassment. Inform the supervisors that even mild to moderate sexual jokes or statements can create an atmosphere of hostility that will make some employees uncomfortable, and could lead to the creation of an environment where sexual discrimination could develop. The supervisor should also be directed to always inform upper management of any sexual harassment complaints he or she receives from employees. Supervisors should never promise confidentiality with an employee when the information relates to sexual harassment. 5.) Conduct a yearly sexual harassment survey among your employees. The survey can be done anonymously and should be distributed with a copy of the company’s sexual harassment policy. The survey can simply ask the employees (male and female) if they have experienced any form of sexual harassment during the past year. Why do a survey?  The results of the survey will tell a court that your company is actively engaged in preventing and correcting sexual harassment. Remember, that the Supreme Court has just determined that an employer can be held liable for incidents of sexual harassment that they are unaware of occurring. So, one method of defense will be to demonstrate to the court or a jury that your company conducts yearly meetings with supervisors and also conducts a yearly sexual harassment survey to attempt to uncover sexual harassment violations before they cause problems for your employees. 6.) Conduct investigations promptly and thoroughly. After the dispute is resolved, a follow up should be done with the employee to ensure that no one has suffered retaliation. Make sure your sexual harassment policy spells out clearly that retaliation against an employee filing a sexual harassment complaint is illegal and will not be tolerated. 7.) Treat same-sex harassment, and men reporting harassment, the same as you would for a woman reporting her male supervisor being sexually inappropriate. 8.) Always document the results of any sexual harassment complaint or investigation. Not only document the results, but document any corrective action that you asked the employee or supervisor to take. Follow up on any corrective action so you can document if the employee fails to take advantage of your companies polices/procedures or any corrective action that your company takes to prevent the sexual harassment from occurring again in the future. 9.) Inform all employees that it is their obligation to report sexual harassment that they either experience or witness.
Mini Menu: Same-Sex Sexual Harassment Employee Dating Disclaimer
The Supreme Court also stated that the court will no longer heavily rely on the two different forms of sexual harassment, “quid pro quo” and “hostile environment.”  The Court called these two forms of sexual harassment of “limited utility” in assessing employer liability.  As a result, an employee that refuses the unwelcome sexual harassment of a supervisor, and who suffers no adverse job consequences, can still bring a sexual harassment lawsuit against her employer if the employee can show they were discriminated by the sexual content. The employee will not necessarily be required to show a loss of advancement, retaliation, loss of income, or stress as they once did under “quid pro quo” and hostile-environment. They will need to show that the nature of the sexual content they experienced caused them to experience discrimination. Give It To Me Straight  This means that even though the employer has a policy against sexual harassment and even when sexual harassment training is provided to their supervisors; they still can be held vicariously liable in cases where a supervisor uses sexual content to discriminate against an employee. The courts are now looking at what a "reasonable person" would determine to be sexual content that could cause discrimination versus the old standards of quid pro quo and hostile-environment. The Supreme Court did not throw out these standards, but will not rely on them as courts have in the past. The Employer Liability Test  The Supreme Court created a two part test to be used by employers in defending themselves against a sexual harassment lawsuit. 1.) The employer needs to show that they took reasonable care to prevent and correct any sexual harassment behavior within their workplace. 2.) The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Lower courts have even been apply vicarious liability and the two part test to determine employer responsibility in cases involving other forms of protected discrimination under Title VII. Deffenbaugh-Williams v. Wal-Mart Stores Inc. and Fierro v. Saks Fifth Avenue. Employers Must Change  If you are an employer, it is time to change how you deal with sexual harassment in your company. Currently at least 40% of all women report being sexually harassed at some point in their career, and men currently account for 11.6 % of all sexual harassment cases filed with the EEOC.  So, the chances of your company needing to respond to a sexual harassment concern is great. Be prepared and you will likely deal with it successfully for all parties involved. Find out more about how to protect your company from a sexual harassment lawsuit. Obtain the 2001 Employers Reasonable Care Pack: Sexual Harassment Prevention in the Workplace. Includes a 18 x 24 color poster designed to be posted in a prominent location for all employees to read. It outlines sexual harassment as defined by the EEOC and by the Fair Labor Standards Act. Order today from Amazon.com $49.95