Can your company defend against sexual harassment charges when harassment has actually happened?

The answer is a very qualified yes, and points up why it’s far better to stop sexual harassment before it occurs.

As law school professors everywhere would outline it, “Supervisor A engages in sexual harassment of Employee B, who works for him. Is there any way Company C, which employs them both, would not be held responsible for A’s sexual harassment in the workplace?”

Open and shut case, right? Lawyer’s dream. Well, not really.

Two sexual harassment cases lay out the guidelines for a defense

The reason the correct answer is not a certain “C gets nailed!” is two sexual harassment cases, one involving a textile giant and the other a Florida beach community. The cases are Burlington Industries, Inc. vs. Ellerth and Faragher vs. City of Boca Raton, FL.

The rulings in these sexual harassment cases provided a very slim opening, through which the company might be able to escape or reduce liability. These key conditions would have to have been met:

First, the supervisor (and it has to be a supervisor, not another employee or third party visiting the workplace, that carried out the sexual harassment) would have had to have done it on his or her own, with the company taking no tangible action against the employee. No firing, no demotion, no discipline, no denial of promotion.

Second, the company would have to prove it had done its part in preventing harassment, issuing a policy, establishing procedures, conducting training, and so forth.

Finally, the employee affected would have to have failed to notify the company of the sexual harassment, within a reasonable time of its occurring. Notification need not be official, or even written. It can just mean telling someone in authority, “A’s behaviors make me uncomfortable.” What’s more, there need not even be notification if the sexual harassment is so blatant that a “hostile environment” is created that even a casual observer can see.

Summing up: Proper program in place. Supervisor carries out sexual harassment anyway. But employee fails to notify in a reasonable time. Talk about a perfect storm!

Easier to prevent sexual harassment than defend against it

The narrowness of this path out of trouble after sexual harassment occurs points out how important it is to prevent it in the first place.

HR professionals advise that that’s a result more easily obtained if a company makes it clear to all that zero tolerance is the rule, that what you think is not harassment may be to another, and it’s the latter person’s perspective that will prevail.

In other words, “If you even start thinking sexually about another person in the workplace … don’t!”