HARASSMENT LIABILITY STEMS FROM LACK OF PREVENTION OR ACTION FROM THE EMPLOYER
Last weeks post (Click here to read) was a lesson in the two types of harassment issues that you as an employer are most likely to deal with:
- Hostile work environment
- Quid pro quo
Those two forms of harassment were defined and described for you. In the event that a claim is brought against you (the employer), two aspects will be reviewed to determine your liability.
1. Did the affected employee issue a complaint of harassment and then suffer a “tangible employment action” soon thereafter?
2. In the event of no tangible employment action, are you able to present an “affirmative defense”?
A tangible employment action may be any of the following:
- Denying a raise
- Termination of employment
- Denying access to training
Bottom line, if the complaining employee suffered a tangible employment action, you as the employer will likely be on the hook for liability because it will be viewed as retaliation.
An affirmative defense demonstrates that the employer took “reasonable care” to prohibit harassment. Following are components of reasonable care:
- A comprehensively written harassment policy
- Regular communication of the policy
- Antiharassment training
- Investigation of complaints
- Appropriate action taken with perpetrators when necessary
- Periodic follow-up with the victims
If the above components are in place and the accusing employee does not avail him/herself of the proper procedures, then the employer will likely not be found liable.
FAILURE TO ESTABLISH AN AFFIRMATIVE DEFENSE AND YOU, THE EMPLOYER ARE TOAST!
Any question as to why PREVENTION is absolutely imperative?
Now that you’re ready to listen, next week’s post will include the FIRST step toward prevention, and how you can avoid the nightmare of harassment!
Tune in next Thursday, same blog time, same blog channel for HR Thursday!
All of the facts and stats on todays post are taken froma 2010 article in Dental Economics by Tim Twigg and Rebecca Crane of Bent Ericksen & Associates