Complying With EEOC Anti-harassment Guidelines: Supervisor Training And Communications Prove Crucial

(RIVERWOODS, ILL., June 22, 1999) – The Equal Employment Opportunity Commission’s (EEOC) recently issued enforcement guidelines dealing with employer vicarious liability for unlawful harassment by supervisors provide important guidance to employers. These guidelines come on the heels of Supreme Court rulings last year (Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton) that further shaped the legal definition of and employer liability for harassment, according to CCH INCORPORATED, a leading provider of employment law and human resources information.

"In its new guidelines, the EEOC makes it quite clear that companies must do more than merely have a sexual harassment policy that is distributed to their managers and employees," said Marjorie Johnson, a human resources and employment law analyst for CCH. "Clearly communicating the policy, and ensuring that both supervisors and employees have the knowledge they need to respond to and report harassing behavior is absolutely essential."

Both the past Supreme Court rulings and the new EEOC guidelines hold that an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action (for example, the allegedly harassed employee is fired or demoted). The EEOC has taken the position that an employer will be automatically liable even if the supervisor’s harassment culminates in a tangible action that is favorable (for example, the allegedly harassed employee is given a raise in return for sexual favors).

However, if no tangible employment action is taken, the employer may be able to avoid liability or limit damages by proving an affirmative defense that includes two elements:

The employer exercised reasonable care to prevent and correct the harassing behavior, and
The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

First Prong of Affirmative Defense: Employer’s Conduct

The first element of the affirmative defense requires the employer to demonstrate that it took reasonable care to prevent and promptly correct harassment. While this generally means employers should establish, disseminate and enforce anti-harassment policies and complaint procedures, the new EEOC guidelines urge employers take further steps to demonstrate reasonable care, specifically stating that "an employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure" and that training can help achieve that result.

"Training is critical in helping to avoid or minimize legal problems, but harassment can also have far greater impacts on an organization than potential lawsuits," said Johnson. "For example, low morale, high turnover and lost productivity. As a result, educating managers and supervisors on harassment – how to prevent it and actions to take if it does occur – are really fundamental in maintaining a strong workforce."

According to CCH, training of managers and supervisors should occur on a regular basis using a consistent format. Topics that training should cover include teaching managers:

What does and does not constitute harassment
What the company’s policy is on harassment
What steps managers must take to avoid engaging in harassing behavior

What managers’ responsibilities are in addressing a sexual harassment complaint as well as how to handle harassment in the workplace even if no complaint has yet been filed
How to ensure that no retaliation is taken against an employee who brings a harassment complaint

A final precaution that companies should take is to document their training efforts so that if a complaint is brought against them in the future, they can show they’ve taken these affirmative steps to exercise reasonable care.

"As an employer, if you have an anti-harassment policy, but no one knows how to implement it – resulting in unresolved complaints of harassment – then you likely won’t be able to meet the first prong of the affirmative defense requirement as it will be apparent that you did not exercise reasonable care," said Johnson.

Second Prong of Affirmative Defense: Employee’s Conduct

The second prong of the affirmative defense requires that the employer show that the employee bringing the complaint acted unreasonably in not taking advantage of preventive or corrective opportunities offered by the employer.

"Unfortunately, employees may not be aware that their companies have an anti-harassment policy, how it works or what steps are in place to protect them against retaliation for bringing forth a good-faith complaint," said Johnson. "And each of these may be viewed by the EEOC or federal court as legitimate reasons for why an employee does not take advantage of an employer’s policy, thereby making it impossible for the employer to prove the second element of the affirmative defense – that the employee acted unreasonably by not exercising reasonable care."

One of the first steps that companies should take is to make certain the anti-harassment policy and complaint procedures are distributed to all employees and that employees sign a receipt that indicates they have read and understand the policy. But, beyond this initial step, companies should consider further training for employees to ensure they clearly understand the anti-harassment programs. As with supervisors, employees should be taught what constitutes harassment and to avoid harassing behavior. Employee training also should cover:

How to respond if they believe they’re in a situation where they’re being sexually harassed
What channels are available to them in reporting harassment to management
What the steps in the complaint and investigatory procedure entail
What precautions the company takes to ensure against retaliation for bringing a complaint

"It’s to the company’s advantage to ensure that everyone clearly understands the organization’s anti-harassment programs," said Johnson. "Both managers and employees must learn it’s their duty not to engage in sexual harassment. Managers need to know they have to report it when a complaint comes to their attention or when they see it in the workforce; and employees have to know it’s their responsibility to report it if it’s happening to them."

Liability Rules Apply to All Forms of Unlawful Harassment

The EEOC’s guidance explains that the standard of liability in a sexual harassment case also applies to harassment based on race, sex (of a sexual or non-sexual nature), national origin, age, disability, and harassment based on opposition to discrimination or participation in complaint proceedings.

About CCH INCORPORATED

CCH INCORPORATED, Riverwoods, Ill., is a leading provider of employment law information and software for human resource professionals, including Human Resources Management, Pension Plan Guide, Benefits Guide and Payroll Management Guide. CCH also provides tax and business law information in print and electronic form for accounting, legal, health care and small business professionals. CCH is a wholly owned subsidiary of Wolters Kluwer U.S. The CCH web site can be accessed at www.cch.com.

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