February 7, 2011

The new year is a good time for employers to review, redistribute and reinforce their harassment and discrimination policies to all employees. Although not required by law, these simple steps can help companies safeguard against liability for harassment and discrimination by their supervisory employees.

The Lay of the Land

The United States Supreme Court held that employers can be vicariously liable for hostile environment sexual harassment by their supervisors. Courts also provide employers with a significant defense against this type of harassment claim, however, as long as the person accused of harassment is not the complaining employee's direct supervisor. Employers can avoid liability for such harassment if the complaining employee suffers no adverse job consequences, provided (1) the employer reasonably tries to prevent and promptly correct the harassment by distributing an appropriate policy prohibiting harassment, and (2) the complaining employee unreasonably fails to use the employer's internal policy to remedy the harassment.

The EEOC has stated that employers that annually redistribute their anti-discrimination policies and retrain their employees may also have this same affirmative defense available when employees sue for any form of discrimination.

Take These Precautions

Employers cannot, however, assert this affirmative defense against sexual harassment or discrimination claims unless they take the following precautions:

  • Make sure your company has a written policy that (1) defines sexual harassment and discrimination, (2) prohibits such conduct, and (3) provides a complaint and investigation procedure. The policy should identify at least two managers to whom employees can report harassment and discrimination complaints, and state that the company will promptly investigate any complaints without retaliation. Distribute this policy to each employee upon hiring and to all employees at least once a year. Post the policy in a conspicuous place where employees can easily access it. Make sure each employee signs a receipt of the policy (preferably each time he or she receives a copy), and keep all signed receipts in the employee's personnel file.

  • Conduct annual seminars on the company's harassment and discrimination policies and enforcement procedures, reminding all employees of what constitutes sexual harassment and discrimination, as well as what happens if an employee violates the policy. Keep these seminars simple: (1) read the policy aloud, (2) explain the complaint and investigation procedures, (3) encourage reporting and (4) answer any questions your employees pose. Document when you conducted the seminars, as well as what you discussed, and require all employees to sign a sheet documenting their attendance.

  • Investigate all complaints promptly, take appropriate measures to prevent the alleged harassment or discrimination from continuing, and ensure that the complaining employee does not suffer retaliation or other adverse job consequences. Throughout the process, document all aspects of your investigation.

By taking these simple steps each year, employers may be able to avoid liability for harassment and discrimination by their supervisory employees. Don't wait until you know you have a problem: affirmative steps now can prevent significant liability later.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.