Defending Against a Sexual Harassment Charge

Over the last several weeks much has been written and stated about the issue of sexual harassment in the workplace. So, what is an employer supposed to do when it receives a charge of sexual harassment filed by one of its present or former employees? Many times, employers reach for the checkbook and try to make the issue go away by offering a cash settlement. They automatically believe that there is no way for an employer to effectively fight this type of legal charge. That would be a wrong impression.

In 1998, the United States Supreme Court held hearings and made decisions on two very important sexual harassment cases. (Burlington Industries, Inc. v Ellerth and Faragher v City of Boca Raton). In deciding these cases, the Supreme Court established several requirements which must be met in order for a company or business to potentially win a sexual harassment charge. Many labor attorneys have dubbed this the Ellerth/Faragher defense, and have actually won harassment cases based on the company following the Supreme Court guidelines.

These guidelines imply that in order to be successful, employer’s must:

1. Distribute a clear and effectively written sexual harassment policy and complaint procedure. This is usually accomplished via the employee handbook. The policy must clearly define what constitutes sexual harassment. Employees must be given several avenues within the organization in which to report the harassment.
2. Provide all employees (line employees and management) with regular (annual) training on the policy.
3. Act quickly and appropriately to investigate and resolve all sexual harassment claims.
4. Insure that the harassing behavior has stopped and, most importantly, that no retaliation has occurred against the individual who filed the initial report.
5. The policy should also state that when an employee feels that he or she has been a victim of sexual harassment, the employee has a responsibility to report or complain about the situation as soon as possible to an appropriate member of management.

Employers must also remember that while sexual harassment is obviously illegal, other forms of harassment are also just as illegal and just as costly. For instance, harassment based on an individual's age, race, religion, national origin, sexual orientation and disability are also actionable as a potential lawsuit. Training programs and the original policy should also include information on these types of harassment.

A company’s best defense against the potential expense and aggravation related to federal or state law violations is to proactively review and revise as needed all Human Resources policies, handbooks, hiring procedures, compensation, benefits, training programs, communications tools and other functions. The professionals of PHHR are ready to assist your organization with this type of training as well as to maintain compliance with the latest state and federal mandates.

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Paul Hilton is a certified Human Resources Consultant, located in Columbia, SC.
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