With the tumble of highly visible claims of sexual harassment and the recent “me too” environment, employers in all industries are double-checking their risk management efforts to ensure best practices. In claims involving hostile work environment harassment without an adverse employment action, employers may use their sexual harassment policies and practices as an affirmative defense where the complaining employee unreasonably fails to complain. Notably, this defense has been applied to claims of hostile work harassment on the basis of other protected statuses (i.e. race, religion), too.
1. Implement an effective policy against harassment. This should be a formal written policy that is communicated to each employee who should acknowledge in writing receipt of the policy. The policy should have examples of unacceptable behavior and warn of the penalties for violation. It is also required by law to post the “EEO is the Law” poster in a conspicuous place in the workplace where notices to applicants and employees are customarily posted.
2. Ensure employees have effective and alternate routes to complain. It is not sufficient to require employees to report violations to their supervisors when the supervisors may be the offenders. Rather than directing complaints to multiple lower level supervisors throughout the company, complaints should be directed to the human resources manager and another high level manager who has been trained to receive such complaints. People designated to receive complaints must be viewed as both receptive and responsive.
3. Investigate the complaint promptly and take appropriate remedial action when warranted.
4. Protect the complainant from retaliation. Retaliation against an employee for making a complaint of sexual harassment in good faith is unlawful. Unfortunately, it is often harder to defend against retaliation claims than the underlying claim.