articles Denton & Keuler - Attorneys at Law in Paducah, Kentucky, Wage and Labor Law in KY by Thomas Keuler

Employers bear considerable sexual harassment liability

Authored by:
Thomas J. Keuler, Partner

tkeuler@dklaw.com

  Thomas Keuler

Here’ something for you employers to think about. According to Lawyer.com, 41 percent of young adult employees had sex with other employees. That’s a lot of people!

Fortunately, most of those encounters will pass without incident. However, some will undoubtedly result in harassment suits against the employer. Believe me, I know. Our firm has defended a bunch of these cases.

Generally speaking, and employer is not liable for its employees’ sexual conduct. But there is a big exception to that rule. Under Title VII of the Civil Rights Act, an employer can be held liable for sexual conduct that harasses another employee. Unfortunately, the line between consensual conduct and harassment is a fine one that in many cases depends on the sensitivity of the victim.

Harassment types

There are basically two types of sexual harassment:

Quid pro quo. Translated, that means “something for something.” It occurs when a supervisor uses employment to obtain sexual favors from a subordinate. The harassment can be positive – a supervisor promises an employment benefit in exchange for the favor. Or it can be negative – a supervisor threatens an adverse employment action to forcibly obtain that favor.

Hostile environment. Most people refer to it as “harassment in the workplace.” It relates to a pattern of offensive behavior, such as ridicule or disrespect, directed against an employee because of gender. Since this type of harassment is not based on a superior/subordinate status, it applies to supervisors and employees alike. It usually takes the form of unwelcomed sexual comments or suggestive physical contacts.

Liability, defense

An employer’s liability under Title VII is severe, especially with supervisors. A 1998 U.S. Supreme Court opinion holds employers strictly liable for supervisors’ harassing conduct. As a result of that ruling, an employer can be liable for damages even when the employer had knowledge of the conduct. Liability can also be imposed on conscientious employers who had adopted work rules against harassment.

Fortunately, the Supreme Court’s opinion offers employers an affirmative defense against harassment claims. This defense is based on the premise that employers are in the best opposition to eradicate workplace harassment. To escape liability, employers must prove their commitment to the task by showing they took reasonable measures to prevent and resolve harassing acts – an that the victim failed to follow the employer’s procedure to resolve the harassment.

To qualify for this defense, an employer must: (1) establish an effective anti-harassment policy and complaint procedure; (2) ensure that all employees are made aware of the policy and procedure; (3) enforce the policy and procedure with vigor.

Effective policy

An employer’s anti-harassment policy and procedure must be effective. The federal Equal Employment Opportunity Commission recommends that every policy and procedure have these elements;

  • A clear explanation of what harassment means, and the type of conduct that would be considered harassment.

  • Assurance that employees who file harassment complaints or provide related information will be protected against retaliation.

  • A clear explanation of the complaint process and how an employee can access it.

  • Assurance that the employer will protect complaint confidentiality to the extent possible.

  • Assurance that the process will provide a prompt, thorough, impartial investigation on harassment charges.

  • Assurance that the employer will take immediate, appropriate corrective action against any employee found guilty of harassment.

    If you want more information, go to www.eeoc.gov/policy/docs/harassment-facts.html. This website will give you good background on sexual harassment and how to effectively deal with it in your workplace.

Tom Keuler has been a partner in Paducah’s Denton & Keuler law firm for more than 30 years. He represents many of the firm’s commercial, industrial and banking clients, and has been special counsel to the City of Paducah and counsel to the Municipal Commission in Frankfort.

Printed in Four Rivers Business Journal (Paducah Sun), February 2010.
 

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