Oct 10, 2011

Will an Anti-Harassment Policy Protect Your Business?

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[/caption] Smart employers know that having a written anti-harassment policy in place is important to help protect against discrimination lawsuits. According to two U.S. Supreme Court cases,¹ Burlington Industries Inc. v. Ellerth and Faragher v. City of Boca Raton, employers may be liable in the event that other employees or supervisors create an environment of harassment or discrimination. The Supreme Court made clear in these landmark cases that the only way employers can avoid liability for a harassing environment is to raise an affirmative defense against the claims. Having an anti-harassment policy is one requirement of the affirmative defense.

Defending Your Business Against Hostile Work Environment Claims

In hostile work environment employment-discrimination cases, the burden is first on the employee to prove that the work environment was made unpleasant because of his race, gender, sex, religion, or other protected status. Once an employee is able to prove he suffered adverse consequences at his workplace in violation of civil-rights laws, the employer faces vicarious liability for the harassing actions of his employees. When hostile work environment discrimination exists, the employer must raise an affirmative defense to avoid this liability, which means the burden of proof shifts to the employer. The employer must prove two things in order to avoid discrimination, and he must prove them by a preponderance of the evidence, which means that more likely than not, what the employer is alleging is true. According to guidelines from the U.S. Equal Employment Opportunity Commission,¹ an employer must prove two things:

“The employer exercised reasonable care to prevent and correct promptly any harassing behavior,” and
The harassed employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

The EEOC guidelines show that having an anti-discrimination policy in place is a vital part of being able to prove that you took reasonable care to prevent harassment.

Drafting an Anti-Harassment Policy

When drafting an anti-harassment policy, make sure that you make it sufficient to be considered "reasonable care" to prevent harassing behavior. Typically, this means that the policy must:

Provide a definition of unacceptable behavior and take a clear stance that such behavior will be addressed promptly.
Provide reporting opportunities for employees who are being harassed. There should be multiple avenues through which an employee can report harassment, including a contact outside of his immediate supervisor or department, so an employee would never be in a position of only being able to report harassment to the harasser, if his harasser were a supervisor.

Simply having a policy is not enough to establish the first prong of the affirmative defense. A company's history of enforcing the policy, its willingness to protect employees and keep claims confidential, and its promptness in investigating any complaints will also be considered when determining whether an employer acted reasonably.

Will a Policy Be Enough?

Unfortunately for an employer, he may have a policy in place and do everything right and it still may not be enough. The problem stems from the second prong of the affirmative defense: The employer must prove that the employee unreasonably failed to take advantage of protections that were in place. Meeting this burden of proof can be difficult and requires that the employer be able to show that he truly was able and willing to help the employee and that the employee simply failed to act. The more protections afforded by the anti-discrimination or anti-harassment policy and the easier it is for an employee to make a report of harassment, the better the chance an employer has of being able to prove that the employee’s behavior in not using the system was unreasonable. On the other hand, any past history of not protecting and promptly responding to complaining employees can be deadly to an employer's defense. For more information, visit: 1. “Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors” The Small Business Authority cannot and does not give legal or tax advice and nothing contained in this article should be construed as such. Before taking any actions based on this or any other article published by The Small Business Authority, we strongly advise you to consult with an attorney and/or your tax professional.