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How employers can protect themselves from liability for harassment

| Jun 18, 2021 | Employment Law for Employers, Sexual Harassment |

When an employee brings a sexual harassment suit against a manager, supervisor or other officer of a company, the company itself often has to spend thousands of dollars defending itself legally. The Supreme Court of the United States has offered some guidance on steps employers can take to shield themselves from liability for the misconduct of their employees under certain circumstances, while also protecting their employees by reducing the likelihood of workplace sexual harassment from occurring in the first place.

Employer’s vicarious liability

As an employer, you are vicariously liable for the negligent or otherwise harmful acts of your employees. The law expects employers to establish and maintain a workplace environment where employees can do their jobs effectively while being reasonably safe from harm. Vicarious liability means that an employee can sue you as the employer for the acts of other employees that interfere with this safe work environment under many circumstances.

Sexual harassment by a manager or supervisor is an example of a harmful condition that disrupts the safe work environment that an employee is entitled to. Thus, unless you have the ability to raise certain key defenses, your company could be liable to that employee for the manager’s actions.

The Ellerth and Faragher cases

Two key Supreme Court cases outlined the formula whereby courts can determine the level of an employer’s responsibility for the inappropriate actions of their employees. These cases – known as the Ellerth and Faragher cases – established what an employer must prove in order to be immune from liability.

First, your company must take reasonable efforts to prevent sexual harassment and give employees recourses for reporting and correcting it if it does happen.

You can satisfy this requirement by establishing effective and thorough mandatory sexual harassment training for all employees and displaying your company’s sexual harassment policy in a prominent location. You must also make sure that your human resources department is well trained and equipped to appropriately handle any sexual harassment reports.

Next, your company’s attorney will have to prove that the employee who is bringing the sexual harassment lawsuit had adequate opportunities to avail themselves of your company’s sexual harassment protocols – and failed to do so. This is easier to prove if you can point to a systematic reporting procedure that your human resources department uses for all such incidents.

Workplace sexual harassment has serious consequences for both the victim and the victim’s employer. Ensuring that your company has proper protocols in place can help to prevent harassment from occurring, and it can help to protect your company from liability in the event that it does occur.