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Legal Issues

By: Julie A. Harrison and Joseph E. Quandt, attorneys with the firm of Menmuir, Zimmerman, Kuhn, Taylor and Quandt, Traverse City, Michigan.

Gone are the days when employers could rely on ignorance as a defense to claims for sexual harassment. Historically, many employers took comfort in the fact that they were potentially insulated from liability for employees who in engage in sexual harassment by an employee simply because they were unaware of the sexual harassment or they had distributed a written policy prohibiting harassment.

The United States Supreme Court recently took a dramatic step toward eliminating the ignorance defense by finding employers liable for sexual harassment by immediate or higher supervisors. The Court held that:

where a supervisor engages in sexual harassment and takes tangible employment action (i.e., reassigning, demoting, or altering employment conditions) against the alleged victim, the employer is strictly liable for the sexual harassment.

where a supervisor engages in sexual harassment and does not take tangible employment action against the alleged victim, the employer is liable for the harassment, unless the employer can show that:
a. the employer exercised reasonable care to prevent and promptly correct sexual harassment; and
b. the alleged victim failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

In light of the recent decisions, employers should take heed and follow these basic guidelines:

Sexual Harassment Policy. Establish a sexual harassment policy if you don't have one, and if you do have one, review it. Each sexual harassment policy must:

Define sexual harassment consistent with the definitions promulgated by the Equal Employment Opportunity Commission and include examples;
Make it clear you will not tolerate sexual harassment in the workplace;
Provide the names of at least two employees that an alleged victim can contact with a grievance. Make sure the contact employees are trained to effectively deal with complaints of sexual harassment;
Be well written and in plain English;
Stress that you will not punish alleged victims of sexual harassment for reporting the alleged instances of sexual harassment;
Be given to each employee, even if it's a revised version of what they already have. Make sure each employee signs a statement that they read it, received a copy of it, understand it, and agree to follow it. Keep the signed statement in the employee's file; and
Be displayed predominately in the workplace.

Training. Consider providing mandatory training for all employees, including owners, supervisors, and managers. Although sometimes expensive, the training might increase sensitivity toward the issue and serve as evidence that you took preventive actions.

Identify Potential Problems. Watch for potential problems, such as small groups of isolated employees or employees who travel together.

Take Action. If an employee makes a claim of sexual harassment, investigate it immediately and follow the policy. If, after a complete investigation, you can't be sure what happened, don't give up. Consider taking the following actions, provided that you act in good faith: require training for the individuals involved, or better yet, all employees; warn the accused that the alleged behavior is unacceptable; and separate, or transfer the employees involved. It is critical, however, that you don't react without first considering the circumstances in which the alleged harassment occurred.

Keep Claims Confidential. Attempt to keep the circumstances of the alleged harassment and the individuals involved confidential.

Same-Sex Harassment. Remember that same-sex harassment is also prohibited.

As in most other areas of your business, simply proceeding under the basis of "what I don't know won't hurt me" is increasingly incorrect. In fact, the state of the law in this area is becoming consistent with many other areas where normal diligence is no longer acceptable. The law now requires that employers become proactively preventive. Accordingly, be wary and on guard to prevent your company from becoming the next "posterchild" for sexual harassment claims.