Sexual Harassment: Prevention and Avoiding Liability
Robert A. McComas
Human Resources Management Services
Flower Mound, Texas
One of the largest and fastest growing areas of employment liability for banks, regardless of size, is sexual harassment. Monetary relief for victims of sexual harassment increased from $7 million in 1991 to over $60 million in 2001 for all industries.
The Courts have made it crystal clear that employers are required to exercise reasonable care to prevent sexual harassment from occurring in the workplace, and to promptly correct and remedy the situation if harassment does occur. The decisions also clarify that employers may be liable for sexual harassment of a subordinate by a supervisor regardless of whether they knew or should have known about the harssment. The Courts have also added protection for the employer by imposing an obligation on employees to use the procedures an employer has put in place to complain about workplace harassment. Their unreasonable failure to do so will insulate the employer from liability for any harassment that does occur as long as the harassment did not result in tangible employment action against the employee.
The Courts also clarified the importance of anti-harassment policies in avoiding liability in sexual harassment cases where no tangible employment action was taken against the employee. Since an effective anti-harassment policy is one way to prove that an employer took reasonable care to prevent and promptly correct any sexually harassing behavior, employers that do not have a policy in place should develop one immediately. Employers that have anti-harassment policies in place should review them to ensure that they are consistent with the criteria the EEOC and the Courts have used to evaluate the effectiveness of harassment prevention policies.
Elements of an Effective Harassment Prevention Program/Policy
In order to meet the standard contained in EEOC’s guidelines, a harassment prevention program/policy should:
1. Be in writing.
2. Define what constitutes harassment and declare that it will not be tolerated.
3. Establish a complaint procedure.
4. Involve training and education programs to sensitize supervisors and employees to harassment issues.
5. Include a prompt and thorough investigation of every complaint.
6. Provide for an investigation that results in prompt corrective action, including appropriate disciplinary action if it is determined that unlawful harassment occurred.
A Policy Is Not Enough
The existence of a policy meeting these criteria is essential, but it will not be enough to prove the affirmative defense created by the Supreme Court. A policy must also be effectively communicated to employees.
Employers should use as many methods as possible to communicate their policies. For example, the policy should be included in the handbook, posted in conspicuous places and communicated orally through training.
Conclusion
As awareness of the issue of sexual harassment grows, it is likely that the number of charges of discrimination and lawsuits raising this issue will also continue to grow. While the Supreme Court’s recent decisions provide some clarity on when an employer will be held liable for supervisor sexual harassment of a subordinate, many questions remain to be answered through litigation. The creation of an affirmative defense provides an opportunity for employers to avoid liability and limit damages, but the defense will be available only to employers who prepare for the possibility of litigation in advance by taking the proactive steps outlined above. Those who do may not avoid litigation, but their chances of prevailing will be increased substantially.
Banks that lose a sexual harassment claim not only are faced with monetary damages but also may suffer a community “black-eye” in the process. Both can be devastating for growing the business.
Robert A. McComas is president of Human Resource Management Services, which provides employment law regulatory compliance and training to the banking industry. McComas may be contacted at 214/513-2682 or e-mail: ramccomas@netscape.net.
