Overview: There are a number of issues employers face when confronting sexual harassment in the workplace. All employers should have a policy that defines and prevents harassing behavior. The policy should designate a system for reporting complaints as well as let employees know that the employer will respond to any complaints of sexual harassment with prompt and immediate action. Employee training and development on the policy is critical for all employees and supervisors. It is also important that they understand the employer's zero tolerance policy for harassment. Employers should monitor the workplace and immediately respond to allegations of harassment by undertaking a full and thorough investigation. An employer must show that it is willing to take swift action and corrective measures. In many instances, this can serve as an employer's best defense to a harassment claim.
Trends: Non-traditional sexual harassment lawsuits are on the rise. There have been a significant number of claims brought by men based on harassment by women. Also, same sex harassment claims are increasing as well. Lastly, courts have determined that employees will have a claim for sexual harassment based on sex stereotyping and situations in which an individual is harassed because he or she did not conform to gender norms.
In Vance v. Ball State University, 570 U.S. (2013), the Supreme Court issued a critical decision which makes it more difficult for employees to prove that an employer is vicariously liable for a supervisor’s discriminatory or harassing conduct. Specifically, the Court held that a supervisor must be someone with the direct power and authority to take tangible employment actions against an employee. This issue is of primary importance when determining whether an employer is vicariously liable for a supervisor's actions in cases of harassment. Under the current law, if the harasser is a supervisor, the employer is automatically vicariously liable for the supervisor's actions. If the harasser is not a supervisor, the plaintiff must prove that the employer was negligent and that the employer knew or should have known of the harassment in order to be liable. This is a much higher burden to meet.
Author: Beth Zoller, JD, Legal Editor
To guide employers on how to prevent third party harassment in the workplace and protect employes and co-workers, XpertHR's content has been enhanced with How to Address Third Party Harassment.
This How To reviews how to implement the proper policies and procedures to minimize the potential for liability regarding third party harassment lawsuits as well as protect an employer's legitimate business interests.
Exercising reasonable care to prevent and promptly correct any sexual harassment makes it possible for an employer to establish an affirmative defense to claims that it is liable for a supervisor's harassment under the New Jersey Law Against Discrimination, the New Jersey Supreme Court held in Aguas v. State.
The jury in the highly publicized sexual harassment case, Marchuk v. Faruqi & Faruqi, has reached a verdict in favor of the plaintiff on her hostile work environment claim under the New York City Human Rights Law (NYCHRL).
In-depth review of the spectrum of California employment law requirements HR must follow with respect to training and development.
As mandated by the California Department of Fair Employment and Housing, all California employers must distribute the California Sexual Harassment Brochure, DFEH-185 or its equivalent.
California's sexual harassment prevention training requirements will soon be enhanced with an abusive conduct component.
This chart covers private employer requirements by state for sexual harassment training and related record retention or notice communications. However, employers in all states should consider providing sexual harassment training in order to minimize liability risks due to a supervisor's inappropriate comments or because of a supervisor's failure to adequately address a harassment incident.
HR guidance on workplace sexual harassment including creating a policy, training employees, immediately responding to harassment complaints and imposing discipline.