The federal Equal Employment Opportunity Commission has released new guidelines interpreting and expanding on last year’s Supreme Court rulings on automatic employer liability for sexual harassment by supervisors. The new guidelines are a helpful benchmark for measuring whether your anti-harassment policies and practices make the grade.
Two Standards For Employer Liability
The EEOC explains that under federal law you are automatically responsible for harassment by a supervisor (even if you didn’t know it was going on) if the employee suffers a “tangible employment action” that results in a significant change in their employment status. This can include termination, demotion, undesirable reassignment, alteration of job duties in a way that interferes with an opportunity for promotions or salary increases, or decisions causing a significant reduction in benefits. However, if the harassment doesn’t adversely affect the victim’s job, you can avoid liability by demonstrating that you took reasonable care to prevent and correct the harassing behavior, such as by adopting and enforcing a strong anti-harassment policy. You also must show that the employee unreasonably failed either to use your complaint and investigation procedures or to take other steps to avoid harm such as filing a grievance with a union.
400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.
Other Harassment Also Covered
The EEOC says its standards also apply to other types of harassment. These include harassment based on race, age, religion, national origin and disability, as well as harassment based on opposition to discrimination or participation in complaint proceedings.
Big Question: Who Is A Supervisor?
According to the EEOC, an individual qualifies as an employee’s supervisor if the person has the authority to take tangible employment actions affecting the worker or to direct the employee’s daily work. And even if someone lacks such authority, you can still be liable if the victim reasonably believed that individual could influence employment decisions affecting the worker.
What To Include In A Policy
One component of your duty to prevent harassment is adopting and enforcing a strong anti-harassment policy. According to the EEOC, an effective policy should contain six critical elements: 1) a clear explanation of prohibited conduct; 2) assurance that employees who complain or provide information are protected from retaliation; 3) a commitment that you will protect confidentiality to the extent feasible; 4) an effective complaint procedure that provides alternative and accessible avenues for complaining about harassment; 5) procedures for a prompt, thorough and impartial investigation and 6) assurance that you will take immediate and appropriate corrective action if you determine harassment occurred.
Taking Corrective Action
When there has been harassment, your remedial action should be designed to stop it and prevent it from recurring. Measures can range from transfer, termination, suspension or demotion to less severe actions such as reprimand, counseling and monitoring.Also, you should take steps to correct the effect of the harassment on the victim without adversely impacting the person. The EEOC provides a number of examples for how to do this, including: restoring leave taken by the victim because of the harassment; deleting any negative evaluations in the victim’s personnel file stemming from the harassment; reinstating the victim; requiring the harasser to apologize; monitoring how the victim is treated; and compensating the victim for financial losses.