By Mark R. Filipp

The following Q & A’s have been selected from Employment Law Answer Book, co-authored by Mark R. Filipp.

Q 4:101 What steps should an employer take to limit its exposure and liability to sexual harassment claims?

In any workplace, the danger that an employer will be held responsible for a sexual harassment claim is real. Moreover, even marginal claims cost the company dearly in legal fees and resources. It is naive to assume that any employer can completely do away with potential exposure and liability. Nonetheless, there are general guidelines an employer can follow to reduce the risk and liability of sexual harassment claims:

  • Create and disseminate a written sexual harassment policy, which provides a “user-friendly” mechanism to report known or suspected harassment situations;
  • Educate all employees about the company’s sexual harassment policy and train supervisors and management to spot and report potentially risky situations;
  • Genuinely encourage employees to report instances of known or suspected harassment;
  • Investigate promptly and thoroughly all internal complaints alleging sexual harassment; and
  • Act promptly to remedy any sexual harassment found to have occurred, including disciplining the harasser (typically, discharge).

Q 4:103 Should an employer encourage its employee to come forward with internal complaints of sexual harassment?

Yes. Liability in some instances may be imputed to the employer by virtue of either supervisory conduct or evidence that the employer should have known of the offensive conduct even if it, in fact, did not. Moreover, defending sexual harassment litigation is extremely time-consuming and costly, with a significant potential for ultimate exposure and liability. Therefore, under basic benefit/risk analysis, employers should have procedures in place that encourage employees to come forward and internally report instances of known or suspected sexual harassment. This gives the employer an opportunity to remedy the situation before it escalates to litigation.

In addition, a prompt and thorough investigation of hostile work environment claims, assuming the employer had no actual or constructive knowledge of the offensive conduct, can be an effective defense to claims of sexual harassment. As a result of Supreme Court decisions, prompt and thorough investigations are integral to maintaining affirmation defenses to hostile work environment claims. Although an employer cannot always prevent individuals from engaging in behavior that may support a claim of sexual harassment, it can encourage employees to come forward with known or suspected violations to allow the employer to take action and possibly avoid liability.

As a result, it is generally recommended that a “user-friendly” procedure be adopted for reporting instances of harassment. This would include allowing complaints to be made verbally (at least initially) and permitting employees to bypass their immediate supervisors to other designated individuals (i.e., higher-ups and human resource personnel). Although ultimately, in the investigation, great pains should be taken to reduce all discussions to writing (e.g., signed statements, signed notes, and the like) to preserve the integrity of the investigation from an evidentiary standpoint, at least initially, the procedure to lodge a complaint should be “user-friendly” so as to encourage and not discourage people from coming forward.

This text originally appeared in Employment Law Answer Book, Ninth Edition (Wolters Kluwer, 2016). Reprinted with permission.

For further information regarding these matters, please contact Mr. Filipp at 248.619.2580 or via email.