How to establish a sexual harassment defense?

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in Discrimination and Harassment,Human Resources

Q. We have several 16-year-old girls working as servers in our restaurant. One worker’s mother told us about alleged harassment. Can we rely on our training for our defense? — E.Q., North Carolina

A. In order to use the so-called “Faragher/Ellerth” affirmative defense, your company must establish that:

  1. It used reasonable care to prevent and promptly correct any sexually harassing behavior; and
  2. The employee unreasonably failed to take advantage of any preventive or corrective opportunities that the employer provided.

It is extremely important that you have such a policy to satisfy the first element. The policy must be understandable—including to teens—and must contain a reporting requirement that provides multiple people for employees to report harassment complaints. Have employees sign for the policy.

You can satisfy the second element by establishing that the employee unreasonably failed to take advantage of your company’s preventive or corrective opportunities.

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