Do you work in an HR department that still hasn’t gotten around to creating an employee handbook? Don’t despair.
As long as everyone in HR andmakes sure employees know the company won’t tolerate sexual harassment and encourages immediate reporting of harassment, you can probably escape liability by acting fast on any reports you do receive.
Recent case: Denise worked as a tour guide on City Sights double-decker buses in New York City. When she attended a company holiday party, another employee assaulted her when he “jumped onto the couch where she was sitting, threw his left leg over her shoulder, placed his right hand on top of or in the back of her head, and began banging his [unexposed] genitals into her face.”
City Sights didn’t have a written employee handbook.
Still, Denise complained a few days later, telling a supervisor what had happened. After hearing the co-worker’s side of the story, the company fired him.
Denise sued anyway, alleging that since City Sights didn’t have a written handbook at the time, it was automatically liable for sexual harassment.
The court disagreed. It said “the absence of a written sexual harassment policy, standing alone” doesn’t mean the employer is always liable. Even without a formal policy, if the employer can show there was a reasonable avenue to report harassment and that complaints led to successful efforts to stop harassment, it won’t be liable.
Because Denise did complain and because City Sights took immediate action, the company wasn’t liable. (Suares v. City Sights, No. 11 Civ. 5650, SD NY, 2014)
Final note: Of course, you should have a written handbook, if only to make it easier for employees to complain.
If Denise hadn’t complained and the conduct had continued, the company might have lost the case.
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