Is your sexual harassment policy up-to-date? If it has been gathering dust and is largely ignored, you are creating possible co-worker sexual harassment liability. That’s because employees who claim co-worker harassment but who failed to take advantage of a harassment reporting system won’t win.
On the other hand, an employee can easily win a harassment lawsuit if she can prove your policy is ignored, no longer works or is misunderstood. The legal rationale: Your apparent neglect shows you don’t take sexual harassment seriously.
Let’s review: Employers are strictly liable for supervisor sexual harassment if the employee also experiences a tangible employment action like demotion, termination or the like. Employers can escape liability for co-worker sexual harassment and supervisor harassment that doesn’t include a tangible employment action only if they exercise reasonable care to prevent or correct any sexually harassing behavior and if the employee unreasonably failed to take advantage of any preventive or corrective opportunities.
Put simply, employers need a robust and genuine sexual harassment policy that tells employees how to report sexual harassment and immediately stops any reported harassment. The policy should be backed by regular employee training on how to report harassment. Those in charge of implementing the policy must consistently handle every complaint.
Recent case: Angela sued, complaining that her supervisor sexually harassed her. However, she never reported the harassment to anyone at the North Carolina state agency where she worked.
When she sued for harassment, the court asked why she didn’t report it. She claimed she didn’t understand the policy and that none of her co-workers did, either.
However, the agency showed the court its policy. It explained that Angela and other employees had received very specific training on the policy, including instructions on how, when and where to report any suspected harassment.
The court reviewed the policy and found it simple and straightforward. Because Angela had been trained on how to report harassment, the court concluded the agency met its obligations under the law. It also noted that Angela hadn’t suffered any adverse employment action, so the agency wasn’t liable, even though the alleged harasser was a supervisor. (Walton v. North Carolina Department of Agriculture and Consumer Services, No. 12-1012, 4th Cir., 2012)
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