I am an employer. What can I do to prevent sexual harassment in my workplace?
Employers must be proactive in preventing workplace harassment in order to avoid civil liability. Based on precedent set in Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) and Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), employers can be liable for both quid pro quo sexual harassment and for hostile work environment harassment unless they make a "reasonable effort" to prevent harassing behaviors.
Reasonable Care to Prevent Sexual Harassment in the Workplace
Many employers question what steps should be taken in order to meet the reasonable effort standard and protect themselves from liability for workplace harassment. According to Equal Employment Opportunity Commission (EEOC), establishing an official anti-harassment policy, disseminating that policy to all employees, and establishing a complaint procedure for any employees who are sexually harassed demonstrates a reasonable effort in preventing sexual harassment.
Both the grievance procedure and the anti-harassment policy should be well-publicized and distributed periodically to employees and supervisors. The policy should contain a clear and detailed description of what types of behaviors are prohibited. It should also include provisions specifying that no retaliation will occur against employees who make complaints.
Complaint Procedures for Workplace Harassment Allegations
The complaint procedure should be straightforward and outlined in the anti-harassment policy. There should be multiple persons available to speak with about a complaint, so that no employee is forced to report to only one person, who could potentially be the harasser. For these purposes, it is generally best to include someone who is outside of the direct chain of command, such as an human resources professional. It is also important for the employer to be clear about the way complaints are handled. Employees should understand that complaints will be promptly and thoroughly investigated. If any employee files a complaint, he or she should also be assured that every effort will be made to preserve confidentiality.
Are Anti-Harassment Policies Required?
While these specific steps are not officially required, it can be very difficult for employers to prove they made reasonable efforts to prevent harassment without such policies and procedures in place. Employers must also take care to thoroughly investigate all complaints promptly. Having anti-harassment procedures in place without following through to enforce them will not be considered reasonable effort to prevent or stop harassment.
Eliminating Liability for Workplace Harassment
Unfortunately, while employers can make every effort to comply with the law, it is not possible for an employer to be 100% protected from liability for sexual harassment. The reason for this is that legal tests for liability also require an employer to prove that the employee unreasonably failed to take advantage of the anti-harassment policy. If the employer successfully proves that he or she had a anti-harassment policy in place, and that an employee failed to take advantage of grievance options, then the employer may be relieved of liability in some cases. In other cases, he or she may be required to pay less in damages if found to be on the losing end of the harassment case.