No one who hears or reads the news is unaware of the problem of sexual harassment. However, many businesses are not prepared for the consequences of it.
The bottom line is that harassment is prevalent in the workplace, including sexual harassment, and it can be costly for employers. In 2017 alone, the U.S. Equal Employment and Opportunity Commission (EEOC) recovered almost $71 million for victims of harassment in the workplace. Much of the fines, settlements and legal fees are paid by employers.
Both Employers and Individuals Can Be Liable
While actual liability for harassment claims can be complex and often problematic, a general rule of thumb for employers is that the company can likely be held responsible for acts of sexual harassment by their managers and supervisors.
Attorney Charles H. Fleischer, Esq. points out in an article at the SHRM website,
"The U.S. Supreme Court has ruled that an employer is always liable for a hostile work environment created by a supervisor when the discrimination takes the form of a tangible employment action—defined as a significant change in employment status. Usually, but not always, a tangible employment action results in economic injury because it relates to matters such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits. The theory is that when a supervisor takes a tangible employment action with respect to a subordinate, he or she is exercising authority delegated by the employer company, and the company is automatically responsible for how that authority is exercised."
Fleischer goes on to note that, for hostile environment cases where no tangible job action was taken, the employer can only be presumed liable for a supervisor's harassing actions. In fact, employers can have a viable defense and avoid liability against these types of claims. The company must be able to prove that it had a policy prohibiting sexual harassment and that this policy was communicated and enforced.
In addition, the employer may have to show that the employee making the charge unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
In addition, there are instances where the supervisor or manager can be held personally liable and subject to costly lawsuits. According to an article from Fisher Philips,
"...with the rise of harassment allegations (specifically sexual harassment) common law claims are Increasingly included In employment-related lawsuits. It Is vital for both employers and managers to know that extraneous common law claims can — and most likely will — be brought with claims of harassment. Discrimination and harassment claims asserted against employers, are commonly accompanied by personal tort actions against Individual managers or employees."
Prevention, education, and reiteration are key to fostering and sustaining a culture that is resistant to these types of behaviors and a workforce that is aware of and knowledgeable of what constitutes unacceptable actions and behaviors in their workplace.
Here is a graphic snapshot of the state of harassment in the U.S. workplace, especially sexual harassment:
Share this Image On Your Site
Training is Not Only Recommended, It's the Law In Many States
One hour-long session every two years will not suffice. In fact, even once a year is not enough to change a culture or permanently instill a shift in thinking, perception and awareness. Harassment training, too, should not be viewed through the lens of mere legal defensibility. Leadership and management must adopt an attitude and mindset of "cultural change" and the task of imparting shared values.
These values should reflect a genuine stance of the organization and a common respect for others.
Legally mandated harassment awareness and prevention training has been established in many states. In California, for example, it is required for all supervisory staff and, as of the beginning of 2019, for all staff of larger employers with 5 or more employees .
The SHRM provided the following breakdown of recent legislation in California establishing what is likely the most comprehensive training requirements of any state so far:
"California's Fair Employment and Housing Act (FEHA) and the federal Title VII of the Civil Rights Act of 1964 make sexual harassment illegal in the workplace. California's AB 1825, enacted in 2005, makes certain employer action items and training mandatory.
Effective Jan. 1, 2015, amendment AB 2053 requires all California employers subject to the mandatory training requirement under AB 1825 to include a component on preventing "abusive conduct."
Effective Apr. 1, 2016, FEHA regulations were revised to clarify and expand the protections, employer actions and training requirements.
Effective Jan. 1, 2018, SB 396 expanded required training for supervisors to prevent sexual harassment to include gender identity, gender expression and sexual orientation.
SB 1343 amended the FEHA regulations and requires businesses with five or more employees to provide sexual-harassment-prevention training to all workers by Jan. 1, 2020, and every two years thereafter."
Help With Your HR Management Best Practices
Accurate and timely management and compliance practices are required for HR professionals in every business. Maintaining this can be challenging, but there are options.
Accuchex is a reputable workforce management services provider and can not only assist you with the burden of your ongoing compliance demands, but can potentially prove to be a more cost-effective solution, as well.
Click the button below to learn what you need to know about labor law in California. For more immediate information, feel free to call Accuchex Payroll Management Services at 877-422-2824.