November 29, 2017
From Hollywood to Capitol Hill, sexual harassment in the workplace has taken the media – and the country – by storm. While harassment in the workplace is not a new topic, the recent surge of claims has put an intense spotlight on the issue. For employers, there is much to learn from the scrutiny. That is why the final webinar in Nexsen Pruet’s 2017 “Building Workplaces That Win” certificate webinar series, to be held on Dec. 13, 2017, will focus on “Preventing Harassment and Retaliation Claims.”
Although much of the recent attention has centered on sexual harassment and even assault, claims of discrimination and harassment are not limited to allegations based on sex or gender. Rather, an employee can also assert a claim based on age, disability, national origin, race, religion, and pregnancy.
These claims are protected by federal statute, specifically Title VII of the Civil Rights Act of 1964, which includes the Pregnancy Discrimination Act; the Age Discrimination in Employment Act of 1967; and Title I of the Americans with Disabilities Act of 1990. Additionally, there are other federal laws such as the Genetic Information Nondiscrimination Act of 2008, which prohibits discrimination based on genetic information, as well as the Equal Pay Act of 1963, which prohibits employers from paying different wages to men and women performing the same work. These statutes prohibit discrimination and harassment in all aspects of employment, including job advertisements; recruitment; applications and hiring; background checks; job assignments and promotions; pay and benefits; and discipline and discharge.
Employers are expected to take precautions to prevent discrimination and harassment in the workplace. Tantamount to doing so is adopting and distributing policies that state clearly the employer is an equal opportunity employer and prohibits discrimination and harassment inside and outside of the workplace. The policy should be included in the employee handbook or openly posted in an area such as a break room where all employees are likely to see it. The policy should describe how to report any discrimination or harassment in the workplace. An employer should also include a provision prohibiting any retaliation against an employee who reports, witnesses, or complains of harassment or discrimination. Additionally, having a trained management team that effectively and promptly addresses any concern of potential discrimination or harassment is essential to maintaining a professional and inclusive workforce clear of such claims.
If an employer finds itself defending a harassment claim, it may be able to build a defense based on a policy that specifically explains how employees should report harassing behavior. Under the Supreme Court decisions of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998), if the alleged harassment against a supervisor did not culminate in a tangible employment action – such as the employee being terminated or disciplined – the employer may not be liable if it can show that 1) the employer exercised reasonable care to prevent and correct any harassing behavior; and 2) the employee unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided.
Having an effective anti-harassment policy is compelling proof that the employer exercised reasonable care to prevent and correct any harassing behavior.
The employee can only rebut this proof by showing that the policy was adopted in bad faith or was otherwise defective or dysfunctional. In addition, if a policy is in place that effectively outlines the reporting method in the workplace, the employee has a responsibility to follow that process. When the employer learns of harassment or discrimination, whether by formal report or otherwise, it must promptly investigate the concerns raised and take any remedial measures necessary pursuant to its policies. An employer should never tolerate unlawful discrimination or harassment.
In addition to maintaining and enforcing appropriate policies, maintaining a workplace culture that promotes professionalism, mutual respect, diversity, and inclusiveness from the top down is critical to preventing harassment and discrimination. When management and/or human resources encourages reporting of behavior that is inconsistent with these values or that may rise to the level of harassment or discrimination, employees are more likely to come forward earlier, before a situation escalates to actionable conduct. Furthermore, when managers and supervisors notice unprofessional or disrespectful behavior, providing immediate constructive feedback to the offending employee is essential to maintaining a positive workplace culture.
If you are interested in learning more about preventing harassment and retaliation claims in the workplace, we invite you to attend our webinar on Dec. 13, 2017. Registration information can be found here.
Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation.