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
A new State Sexual Harassment Training Requirements - Chart has been added to the Quick Reference Tool. This chart summarizes state requirements for private employers regarding sexual harassment training.
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.
In-depth review of the spectrum of California employment law requirements HR must follow with respect to training and development.
As mandated by the Rhode Island Commission for Human Rights, all employers must post the Sexual Harassment poster.
As mandated by the Vermont Department of Labor, every employer covered by the Vermont Fair Employment Practices Act must post the Vermont Sexual Harassment Is Illegal poster.
A New Jersey Court has ruled that employers may impose reasonable weight and appearance requirements without violating gender discrimination laws under certain circumstances.
A new law (S.B. 292) amends the California Fair Employment and Housing Act (FEHA) to clarify that sexual harassment does not need to be motivated by sexual desire and suggests it can be motivated by any number of factors, including lust or hostility.
The California EEO-Harassment section of the Employment Law Manual has been updated to include an amendment to the California Fair Employment and Housing Act (FEHA), which clarifies that sexually harassing conduct need not be motivated by sexual desire.
XpertHR's Financial Services Resource Center for HR helps financial services employers handle their most challenging employment issues by bringing relevant resources together in one place for easy access.
Internal investigations are one of the employer's most effective tools to respond to complaints of discrimination, harassment, waste, theft, fraud or other misconduct. This checklist can assist you in deciding whether to investigate, crafting the investigation to be effective, and producing useful results.
HR guidance on workplace sexual harassment including creating a policy, training employees, immediately responding to harassment complaints and imposing discipline.