by Lynn Lieber, Esq.
A sexual harassment lawsuit is every HR professional’s nightmare. Not only can such litigation be financially devastating to the organization, the bad publicity generated can negatively affect the organization's image for years. Add to that the huge drain on the organization’s time and resources, and it is easy to understand why HR would be interested in preventative measures.
Good hiring practices are the first line of defense in all employment-law disputes. Employment lawyers have a saying that “lawsuits don’t just happen – they walk into your organization on two feet.” In the employment law community, the “plaintiff personality” is commonly discussed. Some common traits of such individuals are that they tend to see themselves as a victim, project past wrongs onto their current circumstances, have significant interpersonal difficulties, job-hop, and are likely to have turmoil in their personal life such as financial problems, abuse issues, and troubled personal relationships. Conducting a careful interview process that includes background checks, reference checks, and thorough interviewing can reduce liability by not hiring the “problem employee” in the first place.
In 1998, the U.S. Supreme Court gave employers a powerful “affirmative defense” in sexual harassment lawsuits that employers can utilize only if they have exercised “reasonable care” and the allegedly harassed employees did not avail themselves of the employer’s procedures to remedy harassment. The exercise of “reasonable care” has been construed as having a current no-harassment policy, training all employees and supervisors on the policy and on unlawful harassment, and enforcing the policy and disciplining employees who violate the policy.
All organizations have such no-harassment policies; few employers have updated their policies to include “gender” as a protected category and any other state or locally protected categories that apply – such as sexual orientation, weight, height, or appearance. The policy should also clearly specify that confidentiality under the policy would in certain instances allow disclosure only on a "need-to-know basis,” whereas there would be strict confidentiality for those reporting complaints. Additionally, the policy should specify that those who bring complaints forward will not be retaliated against by the organization, a supervisor, or coworkers.
Although most employers conduct some form of unlawful harassment training, it is frequently sporadic and inconsistent. Many organizations conduct such training every several years and then only consider it important to train supervisors, not employees. In-person harassment-prevention training has many pitfalls, such as the inept trainer who allows the session to become a forum to air grievances in front of witnesses and attendees who “forget” to sign the sign-in sheets or acknowledge and agree to abide by the policy. Additionally, there is the inherent problem that not all employees and supervisors will be present to attend the training due to sickness, vacations, leave of absence, or other work commitments. To be able to fully assert their affirmative defense in a harassment case, employers should be able to provide clear documentation that all employees have received regular, thorough training on the organization’s policy and the law.
Finally, employers need to be able to demonstrate that their no-harassment policy is routinely and consistently enforced and that the organization’s work culture does not permit harassment to occur. The employer will need to be able to show that it has a well-established procedure for receiving, investigating, and remedying harassment complaints. Even all these measures will not prevent a harassment lawsuit from being filed, but without these procedures it is far less likely the employer will be able to assert its affirmative defense.
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About Lynn Lieber: Lynn D. Lieber, Esq. is a seasoned employment law attorney and a nationally recognized spokeswoman on harassment and discrimination law. Lieber is also founder and CEO of Workplace Answers -- www.workplaceanswers.com/Default.aspx -- a San Francisco-based provider of Web-based legal compliance education. Her areas of expertise include:
· Employment law, changes in laws, and how changes affect businesses
· Unlawful harassment prevention
· Protected categories under Title VII, the Civil Rights Act of 1964
· Sexual harassment prevention
· California’s AB 1825 legislation
· Workplace violence prevention
· Workforce management
· Sarbanes-Oxley/Ethics
· Workplace diversity and related business strategies
· Employment leave laws
· HR policy acceptance
· Legal compliance education
