Courts have long said that employers are supposed to be proactive about preventing and stopping sexual harassment in the workplace. Employers know or should know that simply having a sexual harassment policy in place isn’t enough—they have to aggressively enforce that policy.
What employers may not fully realize is that no one within the organization is exempt from education, training and discipline. And it is often up to HR to make that happen.
Consider a recent 11th Circuit Court of Appeals case out of Florida. In it, someone over whom the employer technically had little direct control was still able to create liability for the employer because it had not been proactive enough to show it was serious about preventing, identifying and stopping sexual harassment.
Recent case: Celeste Bruno worked for the Monroe County government, serving directly under County Commissioner “Sonny” McCoy, an elected official. Monroe County had a sexual harassment policy in place and provided regular training for most employees.
Bruno sued after she endured what she told a jury was a daily barrage of sexually oriented stories from McCoy. She said he ignored her requests to stop and continued on with his recounting of his sexual escapades.
A jury agreed that Bruno had endured sexual harassment and awarded her $48,000 in damages.
The county appealed, arguing that it had a sexual harassment policy, but really couldn’t be expected to do much when the alleged harasser was an elected official. Short of reporting McCoy to the Florida Ethics Commission, or the state attorney general for unethical and possibly illegal conduct, the county said it had little direct authority over him.
The 11th Circuit Court of Appeals court disagreed and upheld the jury’s verdict.
It found that Monroe County required everyone else in the chain of command to attend sexual harassment training, but merely invited elected officials to attend. McCoy wasn’t required to even watch an available PowerPoint presentation on sexual harassment. No one bothered to get McCoy to sign a copy of the sexual harassment policy, acknowledging that he had received and read it. Therefore, Monroe County was liable. (Bruno v. Monroe County, No. O9-14687, 11th Cir., 2010)
Advice: Clearly, HR departments must be proactive when scheduling sexual harassment training. It’s not safe to let anyone opt out.
That may mean having to seek cooperation from the highest levels within the organization. Sometimes, the best approach is enlist the assistance of your attorney or in-house legal counsel. While a company president (or elected official) may not buy the word of an HR professional—even though he or she should—an attorney’s warning may carry enough weight to get the message through.
It is also a good idea to keep scrupulous records showing who received training. Including sexual harassment training as one of everyone’s yearly performance goals may also help, since every supervisor will then be responsible for checking off the requirement at evaluation time. Anything you can do to regularly remind all stakeholders that training and prevention are important will help.
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