Under federal and state law, employers can be held liable for workplace harassment based on race, sex (including sexual orientation in some locations), age, national origin, religion and disability. By taking a few simple steps, employers can significantly reduce the degree to which the employer may be held liable for work place harassment (including sexual harassment). A significant factor in this equation depends upon the action an employer takes in response to a harassment complaint.
As an initial matter, every employer should have in place a written policy providing for equal employment opportunity and prohibiting harassment. An effective policy prohibiting harassment should at least (1) require supervisors to report incidents of harassment; (2) require employees to make formal or informal complaints of harassment; (3) provides a mechanism allowing the employee to bypass a harassing supervisor when making a complaint; and (4) provide that employees receive training with respect to the policy prohibiting harassment.
An employer who maintains an effective policy prohibiting harassment generally will not be held liable for workplace harassment if the employer responds to any complaints of harassment by exercising reasonable care to investigate and correct the harassment. The exception is harassment by a supervisor that results in a tangible adverse employment action, such as termination, failure to promote, demotion or undesirable reassignment.
Key point: the employer’s obligation to conduct an investigation is triggered when the employer receives notice of the harassment. An employer is not liable for harassment if the employee subjected to the harassment fails to report the harassment, and there is no independent reason why the employer should know the harassment was taking place.
Key point: when an employer responds to a harassment complaint by using reasonable care to investigate the complaint and implements a good faith remedial action, the employer will not be held liable for the harassment.
Key point: an employer is liable for workplace harassment if the employer knows or should have known the harassment was taking place and fails to respond, or if the employer’s response shows “manifest indifference” or is unreasonable in light of the information available to the employer.
Key point: a reasonable investigation of a harassment complaint should include interviews of the person claiming harassment, the alleged harasser, and any witnesses to incidents of harassment
There are many advantages to using an attorney to prepare employment policies prohibiting harassment and to investigate harassment complaints. Folkerth and Folkerth has substantial experience preparing employment policies and conducting employee investigations.
Disclaimer: This article has been prepared by attorneys employed by this firm and is provided for general information purposes only to permit you to learn more about our firm, our services and the experience of our attorneys. The information presented is not legal advice, may not be applicable or may be contrary to the laws of certain jurisdictions, is not to be acted upon as legal advice, may not be current, and is subject to change without notice.