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
As recommended by the Maine Department of Labor, covered employers should use the Maine Sexual Harassment Education and Training Checklist Form to develop a sexual harassment prevention training program.
Updated to include amendments to sexual harassment training law, effective November 1, 2017.
A US Equal Employment Opportunity Commission investigation uncovered reasonable cause to believe that female and African-American employees at two Ford plants in the Chicago area had been subjected to sexual and racial harassment, and that the company retaliated against employees who complained about it.
Updated to reflect new hire notice requirements under the forthcoming Massachusetts Pregnant Workers Fairness Act.
This Worked Example illustrates how HR may measure the return on investment (ROI) of a sexual harassment prevention program.
The 9th Circuit Court of Appeals has ruled that unwelcome workplace hugs may give rise to a sexually hostile work environment under Title VII of the Civil Rights Act. The case is a reminder of the boundaries between appropriate and inappropriate workplace conduct.
There are many employment concerns when it comes to managing workplace romance. This Hot Topic showcases many XpertHR resources that can help an employer monitor and manage workplace romance and minimize the risk of liability.
HR guidance on workplace sexual harassment including creating a policy, training employees, immediately responding to harassment complaints and imposing discipline.