Don’t Throw Away Your Defense to a Sexual Harassment Claim

April 4th, 2008

Most employers live in fear of an employee making an allegation of sexual harassment in the workplace. The news is filled with reports of multi-million dollar verdicts against companies in sexual harassment claims.

There are generally 2 types of sexual harassment claims – quid pro quo and hostile environment. Quid pro quo harassment occurs when an employer / supervisor makes some type of sexual conduct a requirement of employment, to obtain a raise or promotion, or to avoid adverse employment consequences. Hostile environment harassment occurs when an employer, supervisor, or co-worker creates an offensive, hostile, or intimidating work environment for another employee through actions such as inappropriate remarks or physical contact.

If your company receives a complaint from an employee of alleged sexual harassment, you do have a defense available to you. However, in order to fully access the defense’s protection, you must have set the procedures in place prior to the claim.

A U.S. Supreme Court decision allows employers a defense against a claim of sexual harassment if it can show that:

  1. the employer took reasonable care to prevent sexual harassment behavior and promptly correct such behavior; and
  1. the individual claiming harassment “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer”.

The most effective method for complying with the “defense” requirements is to have an established sexual harassment policy in place. The policy should be tailored to your specific work environment, should provide for employee communication and training, and should be followed in all instances of alleged harassment.

Companies that do not implement a policy against sexual harassment in the workplace are basically “throwing away” one of the strongest defenses to a claim of sexual harassment by an employee. By adopting, distributing and adhering to an internal employment policy against harassment, employers have a ready-made defense to sexual harassment claims. Without such policies and procedures, employers leave themselves vulnerable to these claims. You should consult with your employment attorney for advice on establishing the appropriate policy and procedures to ensure that your company is protected to the fullest extent possible.

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