At best, you may escape with only having to sit for a tedious deposition. At worst, your company might decide to distance itself from you. To make sure this doesn’t happen, you must know your company’s policies and enforce them. This is especially true when it comes to harassment lawsuits.
Harassment lawsuits continue to impact companies and HR departments. It’s no secret that the #Metoo era has led to an increase in sexual harassment litigation.
There are ways in which you can protect yourself and your company from harassment lawsuits. This starts with making sure that your company has a solid harassment policy in place, and it should end with making sure that the entire HR department follows these policies to the letter.
How is harassment defined under the law?
As defined under the law, harassment occurs when someone in a workplace creates a legally uncomfortable environment for someone else. There are two types: quid pro quo harassment and hostile work environment.
In a quid pro quo case, someone is typically offered a job benefit in exchange for a sexual favor at work.
Hostile work environment is your more typical harassment case. There, someone repeatedly and/or severely makes someone else uncomfortable.
A hostile work environment is created by conduct that is:
- Based on the employee’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information
- Offensive both to the employee and to a reasonable person
- Severe or pervasive
Harassment isn’t limited to sexual harassment; ti can occur with anyone belonging to a protected class. In employment law, a protected class is a group of individuals protected from employment discrimination or harassment by law. This includes race, sex, sexual orientation, pregnancy, religion or disability.
Avoiding liability for supervisor harassment
The goal for any HR professional when dealing with a harassment lawsuit is first to make sure that the behavior stops, but sometimes that goal cannot be accomplished. The next best thing is to make sure that you’re fully protected in any future lawsuit.
Harassment policies are a must for every employer. With harassment cases involving a supervisor, an employer can avoid liability by taking reasonable care to prevent and correct harassment.
The employee must also fail to make a complaint under the harassment policy for the employer to avoid liability.
Courts have found that having an employment policy in place is a prerequisite to taking reasonable steps to prevent and correct harassing behavior. Without this, you invite every former employee to sue for harassment.
As an HR professional, the employee’s attorney will likely depose you and extensively ask you why your department chose not to have a standard policy in place.
Having the policy in place isn’t enough
While a policy is necessary to avoid liability, it isn’t sufficient. If HR professionals, managers or supervisors don’t follow guidelines, employers may still be found liable as the employer loses the protection of their “reasonable care to prevent” defense.
Furthermore, the law places companies with the burden of correcting the harassment. If your HR department, managers and/or supervisors aren’t properly trained, they won’t take steps to correct the harassment.
HR professionals are often on the front line of harassment complaints against supervisors and managers. Employees often feel more comfortable making these complaints anonymously to HR so that they don’t alert their harasser.
You must be ready and able to spring to action when employees levy these complaints.
Discouraging your employees from complaining is a bad idea
You may be tempted to create a policy or atmosphere that discourages employees from making harassment complaints to avoid liability under the defense that the employee must report the harassment. This isn’t a good idea.
Over 95% of employment law cases settle, and lawsuits are rarely about winning at trial; they’re about how long a case will take to settle and how much it will settle for. Your former employee will most likely sue you anyway, and it will come out in some way that you attempted to dissuade your employees from making complaints.
As a company, you’re better off implementing a fulsome employment policy of which you made efforts to make your employees aware. This is something you should consider posting it around your office.
It’s also not a bad idea to include steps to report harassment to HR. You want to avoid any arguments that the employee felt uncomfortable complaining to a harassing supervisor or manager.
Inviting the complaints will make your job easier as you can correct the bad behavior and take appropriate disciplinary action immediately. Furthermore, if an employee ever fails to report, you can credibly say that you had the procedures in place and that other employees successfully used those same procedures to make harassment complaints.
Co-worker on co-worker harassment
Where companies can really avoid liability is with co-worker-on-co-worker harassment. Unlike supervisor harassment, an employer can avoid liability if the employer takes immediate and appropriate corrective action after learning of the harassment.
There have been cases where companies have avoided liability where a co-worker used a racial term in race harassment cases. These companies took fast action against the alleged harasser and courts have found these actions legally compliant.
HR must follow harassment policies
Companies must have harassment policies in place and HR must follow them. We’ve discussed how their failure to do so will invite more meritorious harassment suits.
But as we touched on earlier, there’s another reason - fired employees often look to find creative ways to sue.
Following policies across the board is the best way to ensure that you aren’t inviting any additional lawsuits for discrimination or wrongful termination.
The last thing you want is for the harasser to sue and claim that you applied one set of policies to him or her and another to other employees belonging to a different protected class.
Having harassment procedures in place is a necessity, but alone it’s not enough. HR professionals must follow those policies.
You may never avoid all harassment lawsuits. But you can avoid some. And, probably most importantly, by abiding to your harassment guidelines, you’ll make the lawsuits brought against you far less expensive.