As evidenced by recent news headlines throughout the country, it is imperative for employers to institute policies and procedures designed to prevent sexual harassment in the workplace and to fully address any complaints regarding such conduct as soon as they arise. How employers handle general allegations and formal complaints is critical to both mitigating the harm caused to the victim of the harassment, as well as the potential liabilities of the employer associated with the conduct. The following summary will discuss certain key aspects of any well crafted set of policies and procedures relating to sexual harassment, as well as note important concepts for every employer to be aware of in addressing claims of misconduct.
Harassment can include unwelcome sexual advances and any verbal or physical harassment of a sexual nature. However, sexual harassment does not have to be of a sexual nature – it can include any offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both the victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Even simple teasing, offhand comments, or isolated incidents that may not seem very serious, can be illegal especially when they are frequent, severe, create a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. While many of these concepts may seem obvious to management, it is never wise to assume that the general work force is cognizant of the totality of circumstances that can (and do) give rise to harassment complaints. For this reason, as further discussed below, proper employee training is an absolute necessity to protecting your employees from harassment, and your company from related liabilities.
There is no requirement under New York law that employers provide sexual harassment training, which is in contrast to other states like Connecticut that requires all employers with fifty or more employees to provide two hours of sexual harassment training for supervisors within six months of the start of each supervisor's employment. However, to prevent sexual harassment in the workplace and, as much as possible, mitigate liability for the employer, we recommend the following best practices be embraced and implemented by New York employers.
- Implement a strong anti-sexual harassment policy and train all employees on its contents.
- Enforce your policy and hold employees accountable.
- Promote an inclusive culture in the workplace by fostering an environment of professionalism and respect for personal differences.
- Foster open communication and early dispute resolution, particularly with respect to establishing a procedure through which employees can report instances of sexual harassment without fear of repercussions from either the harasser or the company in general. This may minimize the chance of misunderstandings escalating into legally actionable problems.
- Establish neutral and objective criteria to avoid subjective employment decisions based on personal sterotypes or hidden biases.
- Take advantage of and implement alternative dispute-resolution practices in firm policies and employee contracts.
Recommended Content of Your Policy
At a minimum, an anti-harassment policy should contain the following statements:
- The employer is committed to maintaining a workplace free from sexual harassment.
- Sexual harassment is unlawful and subjects the employer to liability.
- Any possible sexual harassment will be investigated whenever management receives a complaint or otherwise knows of possible sexual harassment occurring.
- Those who engage in sexual harassment will be subject to disciplinary action.
- Explain and define sexual harassment, so that employees will know what actions are prohibited.
- Encourage employees to complain of sexual harassment that they experience or learned was (or may have been) experienced by another employee.
- Indicate to whom employees can complain about sexual harassment (this should, particularly with smaller employers, include all owners and managers, or otherwise provide open access for employee complaints).
- Require employees to cooperate with management during any investigation of sexual harassment .
- Require all supervisory and management staff to report any complaint that they receive, or any harassment that they observe, to a specifically designated point person for intaking such complaints. This is particularly important given that a supervisor’s or manager’s knowledge of sexual harassment may create liability for the employer.
The Faragher-Ellerth Defense
The Faragher-Ellerth defense, outlined by the Supreme Court in the companion cases of Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 24 U.S. 742 (1998), is an affirmative defense employers may use to defend against claims of harassment where:
- no tangible adverse employment action was taken against the plaintiff (for example, discharge, demotion, or undesirable reassignment);
- the employer exercised reasonable care to prevent and promptly correct the harassing behavior; and
- the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm (for example, by not taking advantage of reporting procedures outlined in an anti-harassment policy).
Thus, if a company maintains and implements effective anti-harassment policies and the employee fails to follow such policies by failing to report any harassing conduct to the company, the company may be entitled to avoid liability through the Faragher/Ellerth defense. As well, where an employee follows the policy and complains to the company regarding sexual harassment, if the Company promptly investigates and remedies the issue, the company may also be entitled to avoid liability through the Faragher/Ellerth defense.
Addressing Legal Concerns
If an employee or other person suffers sexual harassment, the first step they should take is to follow their employer’s guidelines for reporting it (which is why it is critical to have these policies in place!). There are also laws that protect against any retaliation by employers against an employee who has reported incidents of sexual harassment, and having a robust anti-harassment program in place will help an employer ensure that the employee’s complaint is not only being seriously addressed, but give the employer an opportunity to discuss anti-retaliation laws with the relevant employees to mitigate any possibility that retaliation (and thus, increased employer liability) will result from a complaint.. Only if employers implement strong anti-harassment policies, take sexual harassment allegations seriously and adhere to the aforementioned preventative steps, will the employer be able to create a safe workplace for its employees and avoid the potential pitfalls associated with sexual harassment claims.
If you have any questions regarding these issues, would like assistance drafting or restructuring existing policies, or need an employment law professional to conduct on-site workplace training, please contact Christina Volpe at (203) 658-8460 or (646) 665-2202, Michele Martin at (352) 316-6955, or Pastore & Dailey LLC generally at (203) 658-8454.
 U.S. Equal Employment Opportunity Commission, Sexual Harassment
 See Conn. Gen. Stat. § 46a-54(15)(B)); Conn. Agencies Regs. § 46a-54-204.
 See Guidance on Sexual Harassment For All Employers in New York State NY Division of Human Rights https://dhr.ny.gov/sites/default/files/pdf/guidance-sexual-harassment-employers.pdf
 See The Fair Labor Standard Act; New York Fair Labor Standards Act.