All too often, I have seen employers who are lulled into a false sense of security regarding sexual harassment and hostile work environment claims because they have a comprehensive sexual harassment policy in their employee handbook. I have conducted sexual harassment investigations where I have reviewed employers’ policies and found them to be excellent. Unfortunately, the investigation reveals that sexual harassment has occurred or an employee or employees have been subjected to a hostile work environment. How can this be? The policy is right there in black and white; it’s up to date; it contains timely examples of the type of conduct that is prohibited; it not only encourages reporting, but it explains how to report. So how then is it that the employer now faces a serious claim? Three words cover it all: lack of training.
Personnel handbooks are great. I believe that all employers should have some type of handbook. But to be useful, employees must actually know what’s in the handbook. Better yet, regarding very important issues that could result in significant liability to the employer, the employees should be trained on the relevant policy and given the opportunity to ask questions regarding the policy’s application and interpretation. This is particularly true of sexual harassment/hostile work environment policies. Below, are the top three reasons why you should make sure your employees are well trained on your sexual harassment/hostile work environment policies.
First, employees need to be well aware of the fact that the intent of the harasser is not what courts consider when reviewing sexual harassment claims. Instead, the court looks at how the victim of the harassment perceived the conduct. Many employees don’t know this and think that if their intent was benign, there’s no problem. This is not the case, and failure to understand this can be very costly.
The second reason to make sure that employees understand their employer’s harassment policy is that the employer can be held liable for employee misconduct that they were unaware of. So in the above example, the employee thought that since she was just joking around it wasn’t a problem. The employer had no idea anything was going on. Now, both the employee and the employer are in trouble, because the employee didn’t understand the policy. To avoid this scenario, training should also include encouragement to report misconduct, and it should be made clear that third parties who observe misconduct should report it; even though they are not directly involved. Finally, employers should routinely speak with employees to see how their work is going. Often such casual conversations will reveal problems that would otherwise go unnoticed.
Finally, the most important reason to insure that employees are properly trained on the employer’s harassment policies is that the employees and the employer may be named individually in a sexual harassment or hostile work environment lawsuit. It goes without saying that being named in a lawsuit is bad for a variety of reasons including but not limited to potential damage to credit and reputation.
So to recap, the harasser employee’s intent does not matter; the employer can be held liable even though they did not know of the harassment; and both the employee and the employer can be named individually in a harassment lawsuit. All of these things are bad, and employers can avoid them all. To do that, I recommend that employers regularly review and update their sexual harassment/hostile work environment policies and then, most importantly, train their employees.