Seven Actions to Take in the Wake of the Supreme Court's Decisions

By Franklin, Kathy Cooper; Butler, Teresa L. et al. | Workforce, October 1998 | Go to article overview

Seven Actions to Take in the Wake of the Supreme Court's Decisions


Franklin, Kathy Cooper, Butler, Teresa L., Mathiason, Garry G., Workforce


How should you respond to the recent verdicts in Burlington Industries, Inc. vs. Ellerth and Faragher vs. City of Boca Raton? Here are seven points of action in executing the Supreme Court's new directives mentioned in "Sexual Harassment: New Rules, Higher Stakes" (WORKFORCE, October 1998). More information can be found at www.workforceonline.com.

1. Develop an anti-harassment policy. A thorough anti-harassment policy, including simple complaint procedures, is critical. An effective, easily understood policy is fundamental to the employer's defense that it exercised reasonable care to prevent unlawful harassment.

The Supreme Court in the Faragher case stated that an anti-harassment policy with complaint procedures would constitute "a significant factor" in meeting the first element of the employer's defense. A stand-alone anti-sexual harassment policy is acceptable, provided a broader, unlawful harassment policy also exists.

2. Distribute the policy.

Once an anti-harassment policy is generated, the employer should disseminate it to all employees. Of course, managers and employees at all levels need to know that the policy exists and how to follow the specific procedures in the event of concerns or complaints about sexual harassment. Too many employers still maintain these policies only in management binders or on corporate office shelves.

Current policies can be placed on an organization's intranet and can be available 24 hours a day. Encrypted computer signatures can validate that the policy has been received. However, for most employers, a signed paper copy of the policy will still be the most efficient method of insuring that each employee has received it.

3. Conduct training.

The unequivocal message from the Supreme Court is that employers must act affirmatively to prevent sexual harassment. When they do, they may raise such acts as an affirmative defense in a lawsuit. For this reason, all employers should revisit their overall sexualharassment prevention plans and adopt more effective, enlightened, practical and consistent training programs.

One of the most effective and proactive ways to prevent sexual-harassment lawsuits is to teach employees about the specific conduct prohibited, and to inform them that they will be held personally and individually accountable for such behavior.

It is important now, more than ever, that supervisors receive training that outlines the conduct that may constitute sex harassment and that they receive a strong message that their employer will not tolerate acts of harassment.

However, the best means of preventing unlawful harassment and laying a strong foundation for the affirmative defenses-as outlined in the Ellerth and Faragher cases-is to ensure that all employees attend comprehensive, periodic "awareness training."

Such training should incorporate both practical information and legal interpretation as to why and how harassment complaints arise, definitions of prohibited conduct in plain terms, and a delineation of complaint procedures that leaves no doubt as to the appropriate means for victims to obtain assistance and relief. Managers, supervisors and human resources representatives should additionally receive appropriate training on how to effectively implement an employer's response mechanisms, from communication of the initial complaint or concern (no matter how informal) to investigating and executing corrective action.

Practical and interactive management-level training on handling typical challenges, such as uncooperative victims, the impact of consensual relationships and a lack of corroborating evidence in "he said-she said" situations is vital. …

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