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Sexual Harassment and Employer Liability
Important legal developments in recent years have made it clear that failure to
train employees to recognize and prevent sexual harassment can expose
employers to liability and financial risk. This is especially relevant regarding
training members of management. In 2010, the EEOC received 11,717
complaints of sexual harassment in the workplace.1 Of those complaints, nearly
30% resulted in some type of monetary settlement, totaling approximately $51.5
million dollars. Employers who opt for litigation over settlements can be expected
to pay monetary awards up to and including millions of dollars, in the event they
are found to be liable.
The two landmark cases that set the standard for employer liability in sexual
harassment suits occurred in 1998: Burlington Industries v. Ellerth and Faragher
v. City of Boca Raton. Liability for employers, as defined by these two cases, is
based upon two factors. First, liability is established under the principle that an
employer is responsible for the actions of its managers. Secondly, employers
should promote the prevention of harassment, meaning employees should be
encouraged to avoid or limit the harm resulting from the harassment. This can be
established through providing reporting mechanisms for employees to utilize and
providing regular harassment training.
The Supreme Court has held that under the aforementioned principles, an
employer is always vicariously liable for harassment perpetrated by a manager if
a “tangible employment action” is taken against the harassed employee. These
actions can include firing or demoting an employee, not providing similar training
or promotional opportunities, or transferring the employee arbitrarily. If such
action has not been taken, there are avenues an employer may create an
affirmative defense in the event a sexual harassment claim is made. One such
avenue is to demonstrate that the employer “exercised reasonable care to
prevent” or remediate, a behavior deemed to be harassing in nature.
The most effective way through which an employer can show they in fact, took
measures to prevent sexual harassment, is by providing all employees, and to a
greater degree managers, training regarding sexual harassment. Additionally,
when a complaint arises, the organization must immediately investigate the
concern and follow up to ensure the behavior does not continue.
In some states, including California, Maine, and Connecticut, sexual harassment
training is mandatory. While the remaining states have no legal obligation for
employers to conduct such training, it is a best-practice to provide training for all
employees and managers. Employers may assume that providing employees
5995 Greenwood Plaza Boulevard, Suite 110 ● Greenwood Village, Colorado 80111 ● Office 303.526.7600 ● 800.650.7005 ● Fax 303.526.7757

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and supervisors a company policy that prohibits sexual harassment is enough to
prove “reasonable care;” however, a recent court case in Tennessee
demonstrates that a policy is simply not enough. In Bishop v. Woodbury Clinical
Laboratory, the employer disseminated the company’s anti-harassment policy to
employees, but failed to provide training on the policy. A sexual harassment case
ensued and the court denied the employer’s affirmative defense stating it had not
met the “reasonable care” provision required by the Faragher and the Ellerth
cases.
Essentially the court held that simply providing a policy is not sufficient for an
affirmative defense, rather an employer must demonstrate that supervisors and
employers understand and were educated about the policy. While the case law
resulting from the Bishop decision is not binding in courts outside of the Middle
District of Tennessee, the conclusion demonstrates a growing trend of requiring
employers to take more proactive measures to prevent sexual harassment.
Additionally, when compared to a potential million dollar lawsuit, the cost of
training is negligible.
Overall, employers who provide training on sexual harassment are better able to
defend themselves against any claims which may later arise. Moreover, proper
training for all employees will diminish the occurrence of sexual harassment
claims as employees who are aware of what constitutes sexual harassment are
less likely to engage in harassing behavior. Being able to prove that training has
been provided to your workforce may also diminish the amount of damages
awarded to the plaintiff in the event liability is found to lie with the employer.
Finally, more employers are training their supervisors and employees on how to
recognize and prevent sexual harassment, further supporting an affirmative
defense in the event a harassment claim is filed.
1. U.S. EEOC, Sexual Harassment Charges FY1997-FY2010
TIP: Keep employee training up to date with annual Sexual Harassment
education. Consistent, scheduled training not only ensures compliance with
state laws, but it also allows for your policies and expectations to be clearly
communicated to your workforce. The more knowledgeable your managers and
employees are, the easier it is to recognize and address situations when they
arise and will assist in decreasing the organization's liability.
BCI conducts Sexual Harassment training for organizations, in-house, to help
reduce incidents in the workplace. For more information, contact us at
800.650.7005.
5995 Greenwood Plaza Boulevard, Suite 110 ● Greenwood Village, Colorado 80111 ● Office 303.526.7600 ● 800.650.7005 ● Fax 303.526.7757