12/ 16/ 2005
by Beth Gaudio
Legal Foundation
It’s that time of year when alcohol, mistletoe and holiday cheer combine to create a legal minefield for employers. Too often the holiday office party becomes a breeding ground for sexual harassment claims. You can, however, protect your employees and your organization from legal turmoil by taking practicable steps to prevent harassment from occurring within your business and at the office holiday party.
What constitutes harassment in the work place? Harassment, sexual harassment and discrimination are aspects of business life that employers must be careful to eliminate. Sexual harassment is not only bad for employees; it’s bad for business. It can be a costly and dangerous business problem. Proactive training is your best weapon against harassment and against lawsuits.
Sexual harassment laws
On June 26, 1998, the Supreme Court stated that the employer is responsible for the actions of the supervisor, even when the employer is unaware of the supervisor’s behavior. Employers can no longer claim that they did not know about harassment because employees did not inform them, nor can they claim that they were unaware of a supervisor’s behavior.
The employer liability test
The Supreme Court created a two-part liability test to protect employers against a lawsuit:
1) Employers need to show that they took reasonable care to prevent and correct any sexual harassment behavior within their workplace.
2) The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
Avoiding sexual harassment lawsuits
At least 40 percent of all women report being sexually harassed at some point in their career, and men currently account for 11.6 percent of all sexual harassment cases. So, the chances of your company needing to respond to a sexual harassment concern are great. Be prepared, and you will likely deal with it successfully for all parties involved.
If your business does not have an anti-harassment policy, get one fast! It should contain a zero-tolerance approach towards harassment. Have an attorney review it and make sure every employee receives and reviews the policy.
- Provide different routes that employees can take to file complaints such as calling a hot line or contacting a supervisor. The employee should also have the option of talking to a male or female supervisor.
- Conduct some kind of sexual harassment training such as watching a video.
- Conduct a yearly sexual harassment survey with all employees. The survey can simply ask the employees (male and female) if they have experienced any form of sexual harassment during the past year. Why do a survey? The results will tell a court that your company is actively engaged in preventing and correcting sexual harassment. Remember, that the Supreme Court has just determined that employers can be held liable for incidents of sexual harassment that they are unaware of occurring. So, one method of defense would be to demonstrate to the court or a jury that your company conducts yearly meetings with supervisors and also conducts a yearly sexual harassment survey to attempt to uncover sexual harassment violations before they cause problems.
- If a dispute arises, conduct investigations promptly and thoroughly. After the dispute is resolved, a follow-up should be done with the employee to make sure that no one has suffered retaliation.
- Treat same-sex harassment and men reporting harassment the same way you would treat women reporting harassment.
- Always document the results of any sexual harassment complaint or investigation. Also, make note of any corrective action you ask an employee or supervisor to take.
- Inform all employees that it is their obligation to report sexual harassment that they experience or witness.
- Finally, make sure that all employees understand that a holiday party is technically a work activity, and unacceptable behavior, including harassment, won’t be tolerated.
