Sexual Harassment Prevention: Employer Obligations

Legal Framework

Title VII of the Civil Rights Act prohibits sexual harassment as a form of sex discrimination. Harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Two types of actionable harassment:

• Quid pro quo: Employment decisions conditioned on sexual favors
• Hostile work environment: Conduct severe or pervasive enough to create an intimidating, hostile, or offensive work environment

Employer Liability

An employer is automatically liable for harassment by a supervisor that results in a tangible employment action. For harassment that does not result in a tangible employment action, the employer may raise an affirmative defense by showing it:

1. Exercised reasonable care to prevent and correct harassment
2. The employee unreasonably failed to take advantage of corrective opportunities

Prevention Strategies

Anti-Harassment Policy

Your policy should:

• Define prohibited conduct with specific examples
• Apply to all employees, vendors, clients, and visitors
• Provide multiple reporting channels
• Guarantee non-retaliation
• Outline the investigation and resolution process

Training

Many states now mandate harassment prevention training. Even where not required, regular training is essential:

• Train all employees on recognizing and reporting harassment
• Provide additional training for managers on their obligations
• Document all training sessions and attendance
• Conduct training for new hires and on a recurring basis

Culture

• Leadership must model appropriate behavior
• Take all complaints seriously, regardless of how minor they seem
• Act promptly on every report
• Hold all employees accountable regardless of position

Conducting Investigations

When a complaint is received:

1. Take immediate steps to protect the complainant
2. Select an impartial investigator
3. Interview the complainant, respondent, and witnesses
4. Gather and preserve relevant documents and communications
5. Make findings based on the evidence
6. Take appropriate corrective action
7. Document the entire process
8. Follow up with the complainant to ensure the behavior has stopped

Documentation

Maintain detailed records of all complaints, investigations, findings, and actions taken. These records should be kept confidential and separate from regular personnel files.