Most jurors believe that employees’ rights are not well-protected in our society. In employment-related lawsuits, jurors believe most companies don’t actually enforce their discrimination and harassment policies, and punitive damages should be awarded against companies that appear indifferent to harassment complaints.
More alarming, however, is the fact that the majority of jurors also believe companies will lie to win a lawsuit, and that million-dollar verdicts go unnoticed by senior management.
So how do you protect your business against a million-dollar sexual harassment verdict? A good offense is always the best defense. Effective employee handbooks and personnel policies not only reduce discrimination and harassment based on sex, race, disability, age and national origin in the workplace, but also significantly limit an employer’s liability when such harassment occurs.
To best prevent harassment in the workplace and defend against sexual harassment lawsuits, a well-drafted employee handbook must contain:
- An equal employment opportunity policy that emphasizes zero tolerance of sexual harassment and specific examples of prohibited conduct
- A clear complaint procedure that requires employees to promptly report sexual harassment and allows them to do so without fear of retaliation
- Assurance that sexual harassment complaints will be promptly investigated and kept confidential
- An acknowledgement form that requires the employee to certify that he or she has read and understands the company’s sexual harassment policy and complaint procedure
Zero tolerance
The most important step in preventing sexual harassment in the workplace is to clearly communicate a company policy of zero tolerance. Along with the company’s statement of equal employment opportunity, the employee handbook should include a specific written policy prohibiting sexual harassment.
This policy should state that the company does not tolerate sexual harassment, complaints will be taken seriously and promptly investigated, and employees engaging in sexually harassing behavior will be disciplined. The sexual harassment policy should also include specific examples of inappropriate behavior, such as explicit sexual propositions, sexual innuendo, suggestive comments, sexually oriented jokes, displays of obscene printed or visual material and unwelcome physical contact.
Reporting procedure
In the event an employee is subjected to inappropriate sexual conduct, you must also ensure that clear reporting and complaint procedures are in place to address and correct the harassment. The handbook should explicitly state that if an employee feels he or she has been subjected to prohibited sexual conduct, that person should report the conduct immediately to a supervisor.
However, problems arise when the supervisor is the one making unwelcome sexual advances or otherwise engaging in prohibited conduct. When this occurs, the harassed employee may not report the conduct for fear of retaliation or continued harassment. It is absolutely critical the complaint procedure allow the employee to bypass his or her supervisor when reporting harassing behavior. The complaint procedure must also specifically name a person outside of the supervisory chain of command to whom employees can report sexually harassing behavior. It is a good idea to name the director of human resources, or another employee who is trained to handle sexual harassment complaints.
In addition to reporting procedures, the employee handbook must also ensure that harassment complaints will be kept confidential, that complaints will be promptly investigated and that employees will not be retaliated against for reporting sexual harassment.
Acknowledgment forms
An effective employee handbook should contain an acknowledgement form to be signed by every employee and kept in his or her personnel file. This acknowledgement should state that the employee has read and understands the company’s sexual harassment policy, as well as the proper procedures for reporting sexual harassment.
If an employee acknowledges understanding of company policy yet fails to promptly report sexual harassment, it is much more difficult to pin liability and significant damages on the employer. By taking this extra step, you can reduce the risk of significant damages at trial- as well jurors’ perceptions of corporate indifference to harassment in the workplace.
Ellen M. Taylor is an associate at Gambrell & Stolz LLP and specializes in employment law and commercial litigation. Reach her at 404-221-6507 or [email protected].
