The fourth condition that must be met to raise the affirmative defense turns the tables and looks at the employee's actions after harassment has allegedly occurred. (For conditions 1 - 3, Go here.)
If the employee has failed to report harassment or take advantage of the employer's complaint mechanisms, this prong of the test for the affirmative defense will likely have been met.
Note that an employee's complaint may be made through an established employee grievance procedure, or it may just come informally to someone in the company such as a human resources manager, an EEO officer, or a company ombudsperson.
In fact, where the harassment is so pervasive to be obvious to a casual observer, an employer will likely not avoid liability just because the employee did not officially complain.
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EEOC guidelines specifically state that if both parties exercise reasonable care—that is, if the employer takes preventive and corrective measures against harassment AND the employee notifies the employer within a reasonable amount of time—the employer's affirmative defense will fail.
What's the best course of action? Train managers and supervisors, watch them, and encourage employee complaints. Yes, encourage complaints, because the earlier you hear them, the more likely you can deal with the situation without it boiling up into a charge or lawsuit.
One important note for all employers—although the Supreme Court's decisions addressed only sexual harassment, the EEOC has stated that the same affirmative defense established in those cases applies to other types of unlawful harassment by supervisors, including harassment based on:
Dealing with harassment is never easy. In fact, let's face it, what is easy in HR? Hiring? Discipline? Firing? FMLA? Accommodations? Yet somehow we have to train our managers and supervisors to deal with it all.
And then, on top of that, the training itself is a hassle—authorizing, planning, delivering, tracking, let alone making time—it's easy to let this critical priority slip.
But there's good news: BLR has created a unique and helpful solution called the Employee Training Center.
This turnkey service requires no setup, no course development time, no software install, and no new hardware. Your employees can self-register, and training can be taken anytime, anywhere (24/7) with nothing but a PC and Internet access. Courses take only about 30 minutes to complete.
Unlimited employee HR (and safety) training—one low cost. Take a look at BLR's remarkable new Employee Training Center. All online, so your employees train whenever they want, 24/7. No setup; no software to install. Find out more.
Just as important, the Employee Training Center automatically documents training. As trainees sign on, their identifications are automatically registered. When the program is completed, the trainee's score is entered. So when you want to see who has or hasn't yet trained on any subject, or check the activity of any one employee, it's all there, instantly available to you, your boss, an inspector—even a plaintiff’s attorney.
These are all motivational, actionable programs—for both employees and supervisors—in such key areas as sexual harassment, FMLA, diversity, communication, USERRA, recruiting, and many more. The courses are kept up to date to reflect federal and state regulatory changes, and what's more, we add new programs continually.
Course certificates can be automatically generated from within the training center, and they are automatically retained for recordkeeping purposes.
The Employee Training Center also includes a similar selection of safety courses—you decide whether you want just the HR courses, the safety courses, or both the HR and safety modules.
And, from the standpoint of your CFO (a truly important standpoint in these tight times), you always know exactly what training will cost, no matter how many programs you use or how many times you use them. There's just one low annual fee—for unlimited training—calculated by the size of your workforce. Budget once and you're done!
If it sounds like we’re excited about this new service, well, we are—and we think you will be, too. We urge you to sign up for a no-obligation demo by visiting the new Employee Training.
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