Protect Your Company And Employees From Harassment Claims

In June 1999 the Equal Employment Opportunity Commission (EEOC) made it clear that the standard of liability and the affirmative defenses set forth in the Supreme Court sexual harassment decisions, Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) apply to all forms of unlawful harassment: sex, race, color, religion, national origin, age, disability, and protected activity. Yet more than two years later many employers are still not following the EEOC guidance and are not providing training for the workforce that will help defend and defeat a claim of harassment.

It is more important than ever for employers to establish, publicize and enforce anti-harassment policies and complaint procedures. Training for all employees, not just managers, is essential. An employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two elements:

  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.

Employers should provide regular training for all employees. In addition, employers should include information about the company anti-harassment policy and procedures in a new employee orientation information.