TIPS FOR PREVENTING AND DEFENDING CLAIMS OF HARASSMENT

Our last issue of Business Lines discussed the expansion of employer liability for supervisor-created harassment. In summary, if a supervisor harasses an employee and that harassment leads to a tangible employment injury for the complaining employee, then the employer is vicariously liable for the supervisor's harassment and has no defense. If the supervisor's harassment does not culminate in a tangible employment injury, the employer is still presumed vicariously liable, but it may assert an affirmative defense that (1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior AND (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Employers can also be liable for harassment created by non-supervisory employees. Courts apply a different standard, however, in cases of co-employee harassment. In these cases, the employer is liable only if it was negligent in failing to prevent and alleviate instances of harassment between employees about which the employer knew, or should have known. Thus, employers can avoid liability for cases of peer harassment if the plaintiff/employee fails to show that the employer had notice, or should have had notice of the harassment. If the employer had notice, it can still avoid liability if its response to the complaint of harassment was reasonable.

While the task of avoiding liability for supervisor harassment is harder than it used to be, employers can take steps to increase their chances of advancing a successful defense to claims of both supervisor and co-employee harassment. These steps include developing a written anti-harassment policy and complaint procedure that is communicated to all employees, training all employees and supervisors periodically, conducting thorough investigations of all harassment complaints, and documenting all of these steps.

Written Policy and Complaint Procedure

Every employer should have a written harassment policy and complaint procedure. Such policy should be current, reviewed annually, and updated as necessary. The policy should prohibit all forms of unlawful harassment and specifically mention sexual harassment. Since not all employees are sure about what conduct constitutes harassment, the policy should define sexual harassment and give specific examples of prohibited conduct.

The policy's complaint procedure should designate the persons to whom employees should make harassment complaints. To avoid the situation where an employee is afraid to complain because the alleged harasser is the designated complaint processor, the policy should provide multiple reporting avenues, including one outside the employee's chain of command.

To ensure timely resolution of complaints, the policy should encourage employees to file prompt complaints. Time limits should also be placed on those in charge of conducting investigations. The investigation should commence within a few days of the complaint, and the investigation should conclude within 10 days after it starts.

The policy should prohibit retaliation advise employees that they will not be retaliated against for making a complaint. Furthermore, the policy should state that persons who violate the policy are subject to discipline, up to and including termination of employment. Finally, the policy should impose accountability on supervisors and managers to report sexual harassment they observe.

Policy Communication

A written policy is useless to an employer unless it is disseminated and regularly made available to employees. In this regard, employers should communicate the policy by posting it at all locations where employee notices are routinely posted. Employers should then regularly examine these postings to make sure that they are not defaced.

Besides postings, a copy of the policy should be given to each employee. This can be done by way of an employee handbook or company intra-net system. The policy should be disseminated to all new employees as part of an orientation package, and hard copies should be disseminated to current employees every year (via mailings to employees at home or in their paycheck envelopes).

Most importantly, every employee should be required to sign a document acknowledging that they have received, read, understand, and agree to abide by the harassment policy. The employer should maintain one of these acknowledgment forms for each employee. If the policy changes, have the employees sign a new form acknowledging they received, read, understand, and agree to abide by the latest version.

Training

All employees, supervisors, and managers should be trained about what constitutes a violation of the harassment policy, why such conduct is not permitted, and what they should do in the event they experience or observe harassment. It is critical that the company be able to document the training provided.

Every employer should train all current employees and supervisors annually, and all new employees as part of their orientation. Newly promoted supervisors should be trained before, or soon after, they take up the supervisory reins. Keep in mind that supervisory training has increased importance these days, since the employer is vicariously liable for their harassing conduct regardless of whether the employer had notice of the conduct. Therefore, prevention is the best medicine.

To increase the chances of presenting a successful defense, employers must maintain a record of every employee and supervisor who receives training. Employers should have the employees sign an acknowledgment form that they received the training provided on a certain date and that they agree to abide by the company's anti-harassment policy. Employees and supervisors should sign one of these forms every time they attend a training session.

Finally, a member of senior management should attend every training session. The acknowledgment forms that attendees sign after receiving training should list the members of senior management who were present at the training session.

Complaint Procedure/Investigations/Record Keeping

In order to establish a defense to vicarious liability, the company needs to be able to show that it has a proven, effective mechanism for reporting and resolving complaints of harassment, and that a fair and thorough investigation took place. All complaints of harassment, including anonymous complaints sufficient to put the company on notice, should be investigated. Documentation, again, is of critical importance.

In order to ensure consistent and equitable enforcement of the anti-harassment policy there should be one individual at each company location who is designated to handle complaints of harassment. Furthermore, if all complaints are reported to a single office, management can discover if any particular problem areas exist.

The individuals responsible for investigations should be specially trained in the applicable law, investigation techniques, and how to make an appropriate written record. Every company should maintain current written guidelines on how to conduct investigations. Note that such written guidelines may create problems if they are not followed, and give rise to breach of contract claims. For this reason, we suggest that investigation guidelines be placed only in a separate management manual that is not disseminated to employees.

In order to properly document the company's prompt responses to complaints, the employer should maintain a record or log of when all harassment complaints were received. This log should be reviewed periodically to determine whether there are any trends about which the organization should be aware, such as situations of ongoing harassment in a particular department or work area.

In every individual investigation, documentation should show what witnesses were interviewed, the length of the investigation, the findings made, and the actions taken. Before any action is taken, the employer should determine whether the recommended response to the complaint is comparable to similar cases and whether it is appropriate. The results of the investigation should be communicated to the complaining party. After the investigation is concluded and appropriate action is taken, the employer should do a follow-up review to insure that the alleged problem is not ongoing. Finally, during and after the investigation, the employer should implement safeguards to maintain the confidentiality of a complaint and investigation.

Conclusion

In order to customize a harassment policy and complaint procedure, the needs and circumstances of the particular organization must be considered. Nevertheless, if an employer follows the general recommendations listed above, it will greatly increase its chances of successfully defending any claim of workplace harassment.

Eric W. Reecher