Adopting a Written Anti-Harassment Policy is not a "Safe Harbor"

Recent rulings by the U.S. Supreme Court and enforcement guidelines released by the Equal Employment Opportunity Commission (EEOC) emphasize that employers need to take steps beyond adopting a written sexual harassment policy including steps such as expanding policies to cover all forms of harassment and implementing employee training to comply with federal anti-discrimination laws.

The EEOC's guidelines, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, follow recent decisions by the Supreme Court. The Supreme Court opinions in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton hold that an employer may be vicariously liable to a victimized employee for a sexually hostile work environment created by an employee's supervisor.

The Court did create, however, the opportunity for employers to claim an affirmative defense to hostile environment liability by demonstrating: (1) that the employer exercised "reasonable care" to prevent and promptly correct any sexually harassing behavior; and (2) that the employee unreasonably failed to take advantage of any preventive or corrective mechanisms provided by the employer or to otherwise avoid harm.

The EEOC's guidelines describe, in part, the actions employers may take to: (1) satisfy the "reasonable care" element of the affirmative defense; and (2) ensure that procedures are available for employee complaints. The EEOC has warned employers that simply adopting written policies prohibiting sexual and other types of harassment does not create a "safe harbor" to protect an employer from liability; additional steps to implement the policies must be taken.

The EEOC has also taken the position that anti-harassment policies and procedures should extend to all forms of illegal harassment (e.g., antagonistic behavior that is racially motivated).

To establish the reasonable care element of the affirmative defense, the EEOC recommends that employers adopt policies and procedures that prohibit sexual and other types of harassment and establish a mechanism for addressing employee complaints of harassment. According to the EEOC, an employer's policy should include, at a minimum: (1) a clear explanation of prohibited conduct; (2) assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation; (3) a clear description of the complaint process that provides accessible avenues for complaints; (4) assurance that the employer will protect the confidentiality of harassment complaints to the extent possible; (5) a complaint process that provides for prompt, thorough, and impartial investigations; and (6) assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Once an employer adopts its policies, the EEOC states that employers should implement and enforce the policies and "take other reasonable steps to prevent and correct harassment." The kinds of "other reasonable steps" will differ from employer to employer, depending upon factors such as the facts of a harassment claim and the size of the employer's business.

Reasonable steps most likely will involve periodic training for supervisors and managers. According to the EEOC, training programs for supervisors and managers should involve a variety of harassment issues, including: (1) an explanation of the types of conduct that violate the anti-harassment policy; (2) an explanation of the seriousness of the policy; (3) a description of the responsibilities of supervisors and managers when they learn of alleged sexual harassment; and (4) an explanation of the employer's policy against retaliation.

If an employee reports an incident of harassment through the employer's complaint process, the EEOC suggests that the investigation process start with a determination of whether the complaint requires detailed fact-finding. If it does, the employer should: (1) take intermediate measures to prevent further harassment, such as making scheduling changes to avoid contact between the complainant and the alleged harasser; (2) conduct the investigation objectively; and (3) have a designated, neutral investigator interview the complainant, the alleged harasser, and any third parties who may have knowledge of or information regarding the harassment. The preventive and corrective measures taken during and after the investigation should be implemented with care to avoid other legal problems for the employer. In particular, an employer should be careful not to take actions that would adversely affect the complainant and possibly subject the employer to charges of retaliation.

Unfortunately, unlawful harassment may occur even in situations where an employer takes the required legal care and an employee follows appropriate harassment reporting procedures. For example, if an employee promptly complained of harassment, corrective action by the employer could prevent more harm but might not correct the harm the employee already had suffered. An employer still may be liable because the affirmative defense requires proof that both reasonable care was taken and the employee failed to appropriately report harassment.

While this may be a harsh result, employers may be able to limit damages by establishing the affirmative defense. Also, it is important to remember that an employer only can claim the affirmative defense when a hostile environment charge is involved, and never can claim the defense if the alleged harassment is a result of a "tangible employment decision" by a supervisor. A "tangible employment decision" includes hiring and firing, demotion, and other actions that significantly change an employee's employment status.

Structuring and implementing an anti-harassment policy and training program can be a daunting task, given all the requirements that case law and EEOC regulations create.

For more information on how you can develop and implement sound anti-harassment policies and procedures, including anti-harassment training programs, please contact William Joseph Austin, Jr., Albert R. Bell, Jr., S. McKinley Gray, III, or David L. Ward, Jr.