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WHY TRAIN YOUR SUPERVISORS?
Faragher v. City of Boca Raton, and Burlington Industries Inc. v. Ellerth, are two ground breaking decisions issued by the Supreme Court. These decisions by the Supreme Court created an affirmative defense for hostile environment claims. By having a preventive policy in place with the addition of prompt and remedial actions, the employer is less likely to be held liable for the actions of their employees. However, the Court added that employers can still be held vicariously liable for conduct of their supervisors and managers, if such conduct culminates in a tangible employment action or a significant change in employment status such as discharge, demotion, or undesirable reassignment.
WHAT DOES THIS MEAN TO THE EMPLOYER?
By having conducted sexual harassment training for your supervisors and managers, and having a well-drafted policy prohibiting harassment, the employer can take advantage of the affirmative defense, and possibly avoid liability. This is only possible, however, if the employer takes prompt and remedial corrective measures in regards to sexually harassing behavior.
WHAT STANDARDS ARE THE COURTS USING?
- The Supreme Court created a two-part test for affirmative defense, where the employers may be able to avoid liability, even if inappropriate statements or conduct occurred:
1. The employer exercised reasonable care to prevent and correct promptly any sexually 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.
WHAT MUST THE EMPLOYER DO?
If you are an employer, it is time to change how you deal with sexual harassment in your company. Currently at least 40% of all women report being sexually harassed at some point in their career, and men currently account for 11.6 % of all sexual harassment cases filed with the EEOC. So, the chances of your company needing to respond to a sexual harassment complaint is great. Be prepared and you will likely deal with it successfully for all parties involved.
SOME EXAMPLES OF INDECENT BEHAVIORS:
- Physical contact that includes touching, pinching, patting, kissing, rubbing up against, fondling, groping, grabbing or assault
- Interfering with or blocking movement
- Verbal sexual advances or propositions
- Suggestive or obscene letters, notes, invitations or email received at work or at home
- Repeated face-to-face, telephone or email invitations after being refused
- Making or using derogatory comments, epithets, slurs and jokes
- Leering, making sexual gestures, displaying sexually suggestive objects or pictures, cartoons or posters
- Verbal abuse of a sexual nature, including graphic comments about an individual's body, sexually degrading words to describe an individual
- Unwanted sexual advances or attention
- Obscene or suggestive sounds
- Passing over qualified employees for promotion in favor of an employee who is sexually involved with the boss
- Obscene or suggestive gifts
- Frequent discussion of sexual acts and exploits
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