This is the sixth article in a series explaining how Employee Handbooks play a critical role in preventing successful lawsuits. This post focuses on information on the need to include a Sexual Harassment Policy when writing an Employee Handbook.

The Need for A Sexual Harassment Policy

Federal law prohibits an employer from discriminating against an employee on the basis of race, color, religion, sex (including pregnancy), national origin, age, and disability in its decisions regarding hiring, firing, demotions, promotions, and other terms and conditions of employment.

States and local laws also may protect marital status, personal appearance, sexual orientation, veteran status, political affiliation, creed and citizenship status.

A cornerstone of an employer’s defense to a claim of employment discrimination or workplace harassment is a strong anti-discrimination and anti-harassment While most employers have adopted such policies, employers should ensure that the policies are understood and followed by employees. This requires that those policies be published in handbooks, in addition to posting them on bulletin boards and circulating them periodically. It is also recommended that employers require employees to sign acknowledgments indicating the employees’ receipt and understanding of the policies.

Two 1998 United States Supreme Court decisions, Burlington Inc. v. Ellerth, 118 US 2257 (1998), and Faragher v. Boca Raton, 118 US 2275 (1998), broadened potential employer liability.  They adopted a strict liability standard for both hostile environment and quid pro quo sexual harassment by supervisors, and made employers liable for sexual harassment even if they were not aware that the harassment occurred, and even if they condemned such harassment in no uncertain terms. At the same time, the Court created an affirmative defense when no tangible job detriment had occurred and provided a means for employers to help insulate themselves from liability for all types of harassment claims.

If a supervisor allegedly engages in sexual harassment , the claims likely will be analyzed as follows:

• Quid pro quo–a tangible job detriment occurred, such as discharge, demotion or undesirable The employer is liable. No affirmative defense.

• Quid pro quo– no tangible job detriment occurred. The employer is liable, but may avoid liability by establishing the affirmative

• Hostile environment – a tangible job detriment occurred, such as discharge, demotion, or undesirable assignment (including from illegal retaliation). The employer is No affirmative defense.

• Hostile environment- no tangible job detriment The employer is liable, but may avoid liability by establishing the affirmative defense.

The affirmative defense requires that the employer prove that:

• The employer exercised reasonable care to prevent and correct promptly any harassing behavior; and

• The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the The employer bears the burden of proof for the affirmative defense.

If the employer establishes the affirmative defense, it is not liable for hostile environment harassment or for quid pro quo harassment in which there is no job Thus, the U.S. Supreme Court’s decisions require that employers establish written anti-harassment policies and complaint investigation procedures.

The Policy should:

• Describe unlawful harassment and give examples;

• Condemn harassment;

• Establish a reporting procedure with the names and titles of individuals to whom harassment may be reported, with alternatives available if the person to whom complaints are normally made is the alleged harasser;

• Assure complainants of non-retaliation;

• State that no agent, supervisor or manager of the Company has authority to violate the policy;
• Require that all employees, supervisors and managers must cooperate in the investigation of complaints of harassment; and

• State that any employee, manager or supervisor who hinders, interferes with or refuses to cooperate in an investigation may be disciplined, up to and including the

Many courts, including the Tenth Circuit federal court (which includes Utah in its jurisdiction) have ruled that employers cannot only be sued for hostile environment sexual harassment but also for hostile environment harassment based on other protected employee discrimination characteristics. Thus, employers can be sued under the same sort of harassment theories used for sexual harassment, but applied to age harassment (40 and over), race harassment, color harassment, national origin harassment, religious harassment, veteran status harassment and mental or physical disability harassment covered by the ADA.  It is therefore extremely important to not only have a written policy banning sexual harassment , but also a similar written policy banning age, race, color, national origin, religion , veteran status and mental and physical disability harassment. The written policy for these other types of harassment should contain similar elements to those contained in the sexual harassment policy, including alternative channels for reporting harassment and an investigation policy.