How to prevent sexual harassment claims in your own backyard.

• Jurisdiction: United States
• Date: 01 April 1996
• Author: Wilson, Rebecca J.

OVER THE last several years, the reality, pervasiveness and consequences of sexual harassment in the workplace have become all too apparent and a concern for employers, including law firms. Increasingly aware of what constitutes impermissible sexual harassment, employees are tuning to the courts to seek redress. Law firms are not exempt from this trend, and, in fact, juries may hold lawyers, who are presumed to know the law, to higher standards.

Workplace sexual harassment claims are brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. [section] 2000e et seq., which makes it an unlawful employment practice for an employer to discriminate with respect to sex.

To help prevent sexual harassment claims from occurring, law firms, like other employers, must develop and implement policies that defame sexual harassment, unequivocally prohibit it and provide a means to investigate an resolve complaints. Through education, training and enforcement of a policy against sexual harassment, law firms can Minimize the chances of being sued and, if they are, of being held responsible for sexual harassment in the workplace.

PREVENTION

Preventing sexual harassment from occurring is much less time consuming than investigation or litigating sexual harassment claims. The single most effective prevention tool is a comprehensive and well-communicated sexual harassment policy. Other measures include mandatory education and training for all employees particularly supervisors, concerning sexual harassment and the implementation of appropriate sanctions when sexual harassment occurs in the workplace. The chances of harassment are reduced when everyone knows the rules and the penalties that will be imposed when those rule are violated.

The Equal Employment Opportunity Commission's Guidelines on Sexual Harassment advise:

Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their rights to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.

The importance of adopting, publicizing and enforcing a written sexual harassment policy, separate from a general anti-discrimination policy, was emphasized by the U.S. Supreme Court in Meritor Savings Bank FSB v. Vinson,[2] in which the Court noted that the defendant's "general nondiscrimination policies did not address sexual harassment in particular and thus did not alert employees to their employers, interest in correcting that form of discrimination." employer's defense that it was not liable for a supervisor's hostile work-environment sexual harassment might have been substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward.

Following Vinson, the EEOC issued its Policy Guidance on Current Issues of Sexual Harassment,[3] which provides a substantial incentive for employers to adopt an explicit policy against sexual harassment that encourages victims to come forward. The EEOC,S policy statement puts employers on notice that generally they will be held liable for hostile environment sexual harassment by a supervisor when the employer fails to establish an explicit policy against sexual harassment and does not provide a reasonably available avenue by which victims of sexual harassment can complain to someone with authority to investigate and remedy the problem. The policy statement also indicates that implementation of a strong policy against sexual harassment and an effective complaint procedure may allow an employer to escape liability for supervisor hostile work environment in certain situations.

The statement concludes by offering the following general advice regarding the essential elements of a sexual harassment policy:

An effective preventive program should include an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented. The employer should affirmatively raise the subject with all supervisory and non-supervisory employees, express strong disapproval, and explain the sanctions for harassment. The employer should also have a procedure for resolving sexual harassment complaints. The procedure should be designed to encourage victims of harassment to come forward and should not require a victim to complain first to the offending supervisor. It should ensure confidentiality as much as possible and provide effective witnesses against retaliation.[4]

But the mere adoption of a pro forma sexual harassment policy will not prevent claims from occurring or insulate an employer. To be effective, the policy should be widely disseminated and truly encourage people who believe they are victims to come forward.

When reviewing the sufficiency of sexual harassment policies, courts will look for more than whether those policies contain minimal boilerplate language. They will scrutinize to determine whether the policies are adequate and sufficient to prevent sexual harassment. Among other things, courts look to the adequacy of the publication of the policy, the adequacy of the people designated to receive complaints and the effectiveness of training regarding sexual harassment.[5]

ELEMENTS OF POLICY

Against this backdrop of regulations and court decisions, employers, law firms, as well as other employers, must adopt written sexual harassment policies. What are the essential elements of a policy?

A comprehensive sexual harassment policy addresses both investigation and prevention. The EEOC defines an appropriate sexual harassment policy as one that clearly sends a message that sexual harassment will not be tolerated, that includes appropriate sanctions and that encourages reporting of complaints. While an effective policy may set forth the EEOC'S definitions of quid pro quo and hostile environment sexual harassment, it is imperative that it also provides concrete examples of prohibited behavior to ensure that its readers fully understand what constitutes sexual harassment. A well-drafted policy also puts potential offenders clearly on notice of the sanctions that will be...