• The Current "How To" of Harassment Risk Management
  • May 2, 2003 | Author: Anne M. Radolinski
  • Law Firm: Fredrikson & Byron, P.A. - Minneapolis Office
  • The federal courts, about every five years, indulge an irresistible urge to send attorneys and employers scurrying, and issue a decision or two redefining the parameters of employer liability and responsibility for sexual and other harassment in the workplace. The last five years have seen a series of decisions prompting companies to revisit strategies for harassment prevention as well as strategies for the prevention of costly litigation.

    The most important change of the last years arose from two U.S. Supreme Court decisions defining employer liability and defenses under the federal anti-discrimination statutes in instances where a supervisory or management employee is found to have engaged in sexual or other harassment. See Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998). The cases delineate circumstances in which an employer may be held liable for harassment by a supervisor even where the employer was not specifically aware of the behavior. The cases also establish that an employer may, in certain instances, have an affirmative defense against such claims where the employer can show that it has taken reasonable care to prevent and correct harassment by way of policy and practice, and the employee had failed to take advantage of the preventive or corrective opportunities.

    State courts and legislatures, in reaction to the U.S. Supreme Court's pronouncements, have tended to follow a similar path in interpretations of employer liability under state anti-discrimination statutes. Most notably for employers operating in Minnesota, the Minnesota Human Rights Act's definition of sexual harassment was significantly amended in 2001. The Act previously provided for employer liability in a hostile work environment case - the most common sexual harassment case - only where it could be shown that "the employer knew or should have known of the existence of harassment and failed to take timely and appropriate action." Minn. Stat. ยค 363.01, subd. 41(3). This language was specifically removed from the statutory definition in 2001. The landscape has been altered significantly in light of these recent developments. The developments ensure the continued popularity of harassment suits and claims. They also guarantee that courts, juries and agencies will closely scrutinize an employer's historical and current policies, practices and training programs, or the lack thereof, to determine whether the employer has taken reasonable care to prevent and correct harassment in the workplace. Employers who are serious about risk management in this area are advised to examine current polices and practices with an eye towards affirmative prevention even in the absence of formal complaints, rather than the traditional focus, which has centered primarily on ensuring a prompt and effective response to express complaints. Effective written policies and regular training programs, which have always been a good idea, are now critical to this process.

    Effective Written Anti-Harassment Policies

    Employers should have a detailed anti-harassment policy tailored to alert employees at all levels to (1) the types of behavior, interactions and communications that may constitute harassment and will not be tolerated; and (2) the specific positions or individuals to whom concerns should be directed. Policies should, among other matters, also indicate that individuals will not be subject to retaliation for reporting harassment. Ideally, the company should disseminate and explain its anti-harassment policy to each employee upon hire, together with other important employment policies, and display the policy on employee bulletin boards and other company information sources, both electronic and traditional. Employers should obtain and retain an electronic or paper acknowledgement of receipt and review of the policies from each employee. Anti-harassment policies and other relevant policies should also be redistributed to the employees in connection with employee training programs on the subject of harassment, discrimination, and related issues. Employers are urged to consult with the company's counsel periodically to update anti-harassment and other employment policies in light of this rapidly developing area.

    Regular Training Programs

    Employers are advised to conduct, on at least an annual basis, a separate training of management, executives, and supervisors on harassment and discrimination issues. The training should be specifically designed for the employer's workplace and industry with a focus on supervisory responsibility, individual behavior and prevention. The training should, among other matters, clearly communicate employer expectations of the standard of behavior for managers, executives, and supervisors, and the responsibility of all individuals at these levels for setting a standard of behavior and actively reporting and preventing harassment in the workplace. The traditional passive discussion of statutory and regulatory prohibitions and/or generic harassment videos will not adequately protect employers in the new legal environment.

    Employers are also advised to conduct a separate training of non-managerial and non-supervisory employees on harassment and discrimination issues on at least an annual basis. This training should similarly be designed for the employer's workplace and industry and, among other matters, should clearly communicate the employer's commitment to a respectful and productive work environment and the employer's expectations of the standard of individual behavior. The training should encourage employees who have concerns or are aware of inappropriate behavior to promptly report the concerns or behavior to the individuals listed in the company's anti-harassment policy.

    The company's anti-harassment and other relevant policies should be disseminated to attendees as part of all training programs on harassment, discrimination, and similar issues. Attendance should be mandatory and employers should keep an ongoing record of attendance, as well as a complete record of program content and materials, instructors, dates, length of programs, and other pertinent information. Ideally, attendees should sign and date an acknowledgement of attendance, understanding, and acceptance of employer expectations and standards crafted by the company's counsel.