With sexual harassment, what you don't know can really hurt you, and your clients

Sexual harassment suits and complaints are common, expensive, and emotionally difficult for any of your employer clients. If you make sure, however, that your clients have a well-drafted, up-to-date sexual harassment policy, your clients can avoid many sexual harassment claims, and have a strong defense if any sexual harassment lawsuit is brought against your client. If your clients don't have a policy, they could be on the hook for sexual harassment that you didn't even know about. What Should the Policy Provide? • The Policy must include a definition of sexual harassment, such as the following: Sexual harassment includes unwelcome sexual advances, requests for sexual favors or any other visual, verbal or physical conduct of a sexual nature when: (a) submission to such conduct is made explicitly or implicitly, a condition of anyone's employment; (b) an employee threatens or insinuates, explicitly or implicitly, that another employee's refusal to submit to sexual advances will adversely affect the employee's appraisal, wages, advancement, assigned duties, or any other condition of employment; or (c) the conduct has the purpose or effect of unreasonably interfering with the employee's work performance or creating an environment that is intimidating, hostile, or offensive to the employee. • The Policy has to tell the employees that sexual harassment, and any type of harassment is forbidden. The Policy should state that employees should make clear to the offender that the conduct is unwelcome. • The Policy must establish a complaint procedure. It must tell employees to whom they should complain, and that they should report any suspected harassment as soon as possible. Give the employees more than one person to complain to in case the complaint involves the designated person, and specify an owner or upper-level manager. Avoid designating the employees' immediate supervisor as the person to report to. The immediate supervisor is more likely to know, and possibly be friends with, the people involved in the harassment, and may not pass the allegations on to upper management. Also, confidentiality is harder to protect the more people that know about the harassment. • The Policy should provide that each employee has a duty to cooperate in investigations of allegations of sexual harassment, and that failure to do so will subject the employee to discipline. • The Policy should assure employees that their complaints will be kept confidential to the extent possible. The employer will not be liable for harassment, even if it knows about it, if the victim of the harassment insists that the matter be kept confidential from the alleged harasser. In Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997), a manager learned of the harassment from a co-worker, but when he asked the victim about it, she told the manager not to do anything and not to confront the alleged harasser. When she later brought suit, the Court held that the employer would not be liable for honoring the employee's request for confidentiality. • The Policy should state that any employee found guilty of any type of harassment will be disciplined, up to and including termination. In a future article, I will discuss other things employers should and are required to do regarding workplace sexual harassment. Why Have a Policy? If an employee believes he or she is being harassed, a well-drafted policy will protect your client whether or not the employee tells you about the harassment. • If the employee does report the allegations, you and your client will have the opportunity to investigate the allegations and deal with the situation prior to litigation. Any investigation of a complaint of sexual harassment must be conducted with care and with the guidance of counsel. But if you know about the problem, at least you have the opportunity to correct it. • Even if the employee does not report the suspected harassment, and files suit without telling you about the harassment, you may be able to avoid liability for the harassment if you have an effective sexual harassment policy in place. The Supreme Court in the cases of Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1988) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) held that an employer will not be liable for some types of sexual harassment if the employer has an effective complaint procedure and the employee does not use it. Generally, as long as the employee was not terminated, demoted or had a pay cut as part of the harassment, the employer will not be liable if the employee does not use the harassment reporting procedure. If the employer does not have a sexual harassment complaint procedure established, the employer can be liable for many types of harassment even if management is unaware of any problem.