Workplace sexual harassment has been around for years, and unfortunately, while it may have slowed down a bit, it has not gone away completely. We hear about it in the news all the time, particularly with high-powered corporate executives. But what can employers do to prevent such harassment from occurring in the first place? And if an employee makes allegations, how do you defend against them?
Both state and federal employment laws are clear on their stance regarding harassment of any kind. If an employee informs an employer about improper behavior taking place at work, the employer should immediately begin an investigation of the claim (assuming the circumstances allow for an immediate investigation).
Once the investigation is complete, employers are encouraged to take appropriate steps to prevent against further harassment. Doing so will not only protect you, as the employer, from potential liability, but it will also work to promote your policy regarding sexual harassment/discrimination in the workplace. New Jersey courts note that legal exposure for the employer can be avoided if they use reasonable care to prevent and rectify harassing behavior. That said, you should have a clear-cut anti-harassment policy in place, and your employees should be advised and properly trained on that policy.
You should also have procedures in place for handling complaints/grievances, investigations and using proper measures when such harassment claims arise. Having this prepared in advance of potential issues provides what is known as a “safe haven” for employers should they find themselves in the midst of a legal battle.
No employer likes dealing with legal issues of any kind. When it comes to concerns of workplace harassment, you will likely work with a company attorney to determine the best course of action. The key here is to review your policies and best practices on a regular basis and update them as needed.
Employers who take the proper steps against harassment will be able to assert an affirmative defense, assuming no type of job action was taken against the complaining employee. More specifically, the employer must demonstrate that it used reasonable care to immediately correct and prevent sexually-harassing behavior and the employee at issue did not use any of the preventative/corrective measures that were put in place to help avoid being harmed.
Employers who can show that they have an effective anti-harassment policy in place, but the employee failed to use the policy and report the issue will likely have a successful outcome.