Protecting Your Organization During The #MeToo Movement

The #MeToo movement has brought sexual harassment in the workplace to light, which has serious implications for corporate liability and culture. A recent survey by the Society for Human Resources Management found that 36 percent of Human Resource professionals reported an increase in the number of complaints in the past year. It is important now, more than ever, to ensure that your company is protected by implementing an effective anti-harassment policy. Doing so can assist your organization in recognizing and responding to unlawful behavior and helping to prevent it from reoccurring.

Moreover, implementing such a policy and promptly correcting unlawful behavior may allow you to minimize or avoid liability for your organization. If no adverse employment action (such as discharge or demotion) has been taken against a victim, an employer’s liability often depends on whether the employer adequately sought to prevent harassment from occurring, and whether it promptly and adequately responded upon learning such conduct occurred. For example, in a recent case from Missouri, an employee received a significant jury award—including punitive damages—against her employer because the employer failed to provide an effective remedy to stop harassment by customers for over a year after the employee complained.

This article explains when employers may be liable for harassment and provides tips for executives to use in implementing anti-harassment policies and responding to claims.

Standards for Liability

An employer’s potential liability for actionable harassment, or harassment with sufficient grounds to state a claim, depends on the position of the victim and harasser and whether an adverse employment action has been taken. The standards for employer liability discussed below assume the harassment is otherwise actionable.

“Employers cannot turn a blind eye to harassment, and a good starting point is to implement an anti-harassment policy.”

If supervisor harassment results in an adverse employment action against an employee, the employer is strictly liable. But when no adverse employment action has been imposed, an employer may avoid liability for supervisor harassment if it can prove:

• It exercised reasonable care to avoid and promptly correct harassment; and
• The victim unreasonably failed to take advantage of corrective opportunities or otherwise to avoid harm (as ruled by the Supreme Court in Faragher v. City of Boca Raton).

When a co-worker or third party (such as a customer) is the harasser, an employer is generally liable if the victim can prove that the employer:

• knew or should have known about the harassment; and
• failed to take prompt remedial action.

In assessing the employer’s conduct, courts consider whether the employer failed to provide a mechanism for complaints, failed to monitor the workplace, dissuaded employees from complaining or failed to respond to complaints.  As soon as an employer—or its supervisors—becomes aware of harassment, the employer’s duty to take prompt corrective action is triggered. In fact, in a recent case from Texas, an employer was held liable for harassment when it failed to commence its investigation for over two months and failed to take remedial action for over five months, after the employee reported the behavior.

Implementing an Anti-Harassment Policy.

Employers cannot turn a blind eye to harassment, and a good starting point is to implement an anti-harassment policy for which all employees are required to sign an acknowledgment. The policy should state:

• Complaints of harassment may be made to more than one individual (including someone other than the alleged wrongdoer);
• Employees who make good faith complaints, or who provide information in an investigation, will be protected against retaliation;
• The company will promptly investigate complaints;
• If the company determines unlawful conduct occurred, it will take appropriate corrective action; and
• Supervisors and employees who violate the policy are subject to discipline, up to and including discharge.

Training.

Next, employers should provide harassment training sessions for management and non-management employees. Training sessions should explain the law of harassment, the company’s policies and the consequences for violations.

Investigating and Correcting Unlawful Behavior.

Last, but certainly not least, employers should promptly investigate and take remedial action in response to observations and complaints of harassment. Companies should ask employees to complete a written complaint form and submit all evidence of the alleged wrongdoing. While the investigation is ongoing, management should avoid making statements that could be perceived as pre-judging whether wrongdoing has occurred. As part of an investigation, companies should:

• Gather relevant evidence;
• Interview the claimant, alleged wrongdoer and witnesses (ideally, two company representatives should be present during interviews, and take detailed notes);
• Document all information received;
• Make findings at the conclusion of the investigation;
• Take prompt corrective action to stop unlawful conduct; and
• Inform all individuals that retaliation is prohibited.

Companies should consider retaining counsel for advice and assistance in preparing policies and preventing and responding to claims. While you cannot watch over every person within your organization, you can implement procedures to minimize the likelihood that harassment occurs and minimize the potential liability to your company if it does occur.