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What Employers Should Know

As an employer, you have the legal responsibility to provide a workplace free of sexual harassment and discrimination. In many cases, employers have been held liable and have had to pay large settlements to employees for situations that could have been prevented by instituting adequate policies and controls. In addition to being illegal, sexual harassment and discrimination are bad for company morale and bad for business.

Preventing Sexual Harassment and Discrimination
How an Attorney Can Help
What to Do if You Receive a Complaint
Employers' Liability
How to Avoid Liability
What is a Hostile Work Environment?
Responsibility of Employers for Hostile Work Environment

How to Prevent Sexual Harassment and Discrimination in the Workplace

  • Develop a written policy concerning sexual harassment and discrimination. The policy should clearly state that it is not only against the law, but also against company policy and will not be tolerated.
  • Create an effective complaint or grievance procedure. The procedure should make it easy and comfortable for an employee to file a complaint, especially if the alleged wrongdoer is a direct supervisor. The procedure should also be such that a solution to the problem can be arrived at quickly and effectively.
  • Take complaints seriously and respond to them as quickly as possible.
  • Consider purchasing commercial lines of insurance that could cover sexual harassment and discrimination claims.

It is important to keep in mind that worker productivity decreases with increases in an unpleasant work environment. An employer should ensure their workplace is free from discrimination and harassment, not only to avoid monetary damages stemming from lawsuits, but also to promote worker satisfaction and productivity.

How an Attorney Can Help Your Company

An attorney experienced in the areas of sexual harassment and discrimination law can:

  • Review your sexual harassment and discrimination policies, grievance procedures and employee handbook or manual.
  • Assist you in drafting or redrafting anti-harassment and anti-discrimination policies and guidelines.
  • Conduct sexual harassment/sensitivity training for your employees.
  • Advise you on how to retain an otherwise valuable employee against whom a complaint has been made while protecting the company from increased liability.

What to Do if You Receive a Sexual Harassment or Discrimination Complaint

  • Retain a knowledgeable attorney quickly.
  • If the investigation is conducted under the auspices of an attorney, it has a higher likelihood to be protected against discovery production in litigation because it may be deemed privileged as "attorney work product."
  • Make sure the investigation of any alleged harassment or discrimination is prompt, thorough and confidential.
  • Make sure that any disciplinary action taken is quick and appropriate. Swift and effective handling of allegations helps with the case at hand, prevents future incidents and also ensures positive employee morale and sustained levels of worker production.

Employers Can Be Held Liable for Employees Who Engage in Sexual Harassment or Discrimination

According to The Supreme Court, "an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over an employee."

These rulings primarily relate to supervisory relationships rather than peer relationships. Supervisors have a greater opportunity to harass and/or discriminate against other employees, therefore, an employer has a greater responsibility to guard against misconduct by supervisors than by peer workers.

How Employers Can Protect Themselves and Avoid Liability

To avoid or limit liability, the employer may assert that:

  • The plaintiff employee unreasonably failed to take advantage of the internal corporate policy and procedures to prevent or correct harassment and/or discrimination.
  • The company exercised reasonable care to prevent and promptly correct any harassing or discriminatory behavior brought to their attention.

However, the best way a company can insulate itself from liability is to ensure that the work environment is free from harassment and discrimination and that there is an open-door policy so that those who believe they have suffered due to harassment or discrimination have an easy avenue to redress the problem.

What is a Hostile Work Environment?

A hostile work environment is one where sexually-oriented or discriminatory conduct is so pervasive as to create an offensive or unpleasant working environment. Examples include:

  • Demeaning verbal statements (may be continuous or one-time usage) such as "little girl."
  • Racial epithets or slurs.
  • The display of sexually explicit or pornographic materials such as pin up calendars.

Employers Can Be Responsible for a Hostile Work Environment

  • If an employer is aware of a hostile work environment and has not taken any appropriate action to correct the problem, then the employer may be held liable for harassment.
  • However, if the employer was not put on notice or made aware of the situation through the company's grievance procedure (assuming one exists) or other verbal or written notification, the employer may be able to avoid monetary liability for a hostile work environment claim.