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Minimize Workplace Sexual Harassment Claims, Avoid Liability

Minimize Workplace Sexual Harassment Claims, Avoid LiabilityThe issue of sexual harassment has been a topic of discussion most recently in the news in the wake of allegations made against former Fox News host Bill O’Reilly and resulting payment settlements by the network’s parent company, negative comments made by the director at a Bay Area Veteran Affairs clinic in San Francisco when responding to workplace harassment allegations made by his staff, and various legal pundits weighing in on the effectiveness of anonymous hotlines in reporting harassment incidents. These issues once again have brought to the forefront why it’s so critical for employers to have robust policies and procedures in place to minimize sexual harassment claims in the workplace and mitigate the potential for liability.

Employers should review their existing discrimination and retaliation prevention policies to ensure they are in compliance with regulations under the Equal Employment Opportunity Commission (EEOC), which is responsible for enforcing anti-discrimination laws. Prevention strategies include:

  • Adopting a clear anti-sexual harassment policy. The company’s employee handbook should include the definition of sexual harassment; be clear that in no uncertain terms will sexual harassment be tolerated in the workplace; state disciplinary actions/firing for any wrongdoers; set a clear procedure for filing sexual harassment complaints; outline that any complaint/incident will be fully investigated; and emphasize that the company will not tolerate retaliation against anyone who complains about sexual harassment.
  • Training all employees – not just managers and supervisors – regularly. This also includes training temporary workers. The EEOC just issued new guidance emphasizing its expectation that employers train all employees regularly. Failing to do so will significantly hamper an employer’s defense against harassment claims. During the training, review the company’s complaint procedure, and encourage employees to use it.
  • Exercising “reasonable care” to prevent harassment in order to avoid liability. Most courts hold that simply issuing or posting anti-harassment policies is not enough. For example, in the case of Pullen v. Caddo Parish School Board, the Fifth Circuit recently ruled that providing most, but not all, employees with an anti-harassment policy and training was not enough to avoid a jury trial where the plaintiff claimed she never received the policy or the training.
  • Obtaining proof and documenting that all employees not only received your anti-harassment policies, but also received adequate training on a regular basis, which is typically considered annually.

Some states also require certain employers to conduct sexual harassment training. For example, California law requires employers that have at least 50 employees to provide supervisors with two hours of interactive sexual harassment training every two years. Connecticut and Maine also require sexual harassment training. In addition, other states strongly encourage employers to provide such training, even if it isn’t legally required.

Also important is making sure that you have Employment Practices Liability Insurance (EPLI) in place, which provides coverage for employers in the event of lawsuits associated with employment activities of the company. Lawsuits can arise from discrimination, sexual harassment, wrongful hiring and firing, advancement, and promotions. Axis Insurance Services specializes in providing employers with EPLI coverage and would be happy to discuss this must-have protection with you, particularly critical in today’s litigious environment. Just give us a call at (877) 787-5258.

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Blogged on: May 31, 2017 by Mike Smith

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