Counsel’s Corner: Sexual Harassment

Disclaimer: This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation.

On January 20, 2021, President Biden rescinded the Trump executive order that banned federal contractors from workplace training programs concepts that address “any form of race or sex stereotyping or race or sex scapegoating” and imply “conscious or unconscious” bias on the basis of an individual’s race or sex.

Employers can assert an affirmative defense, called the Faragher/Ellerth affirmative defense, to certain claims of sexual harassment by showing that:

  • they have an effective sexual harassment policy and complaint procedure, and
  • the employee unreasonably failed to use the complaint procedure. Sexual harassment prevention training is an essential element of an effective policy and complaint procedure.

Laws and Regulations Addressing Sexual Harassment Training

Supreme Court decisions in Faragher v. City of Boca Raton, 524 U.S. 775, 77 FEP Cases 14 (1998) and Burlington Industries Inc. v. Ellerth, 524 U.S. 742, 77 FEP Cases 1 (1998) established that an employer can avoid liability for hostile environment sexual harassment by showing that it had a clear, well-publicized anti-harassment policy and internal complaint procedures, but the employee unreasonably failed to take advantage of these remedies.
The Equal Employment Opportunity Commission’s sexual harassment guidelines the necessity of conducting sexual harassment training. For more information, visit http://www.eeoc.gov.

A number of states have laws or regulations that require or strongly encourage sexual harassment prevention training in either the public or private sectors.

  1. Refrain from engaging in inappropriate behavior, which is broadly defined in the company’s Respect in the Workplace policy and/or employee handbook.
  2. Report immediately all complaints and incidents of discrimination or harassment to the human resource department, regardless of (a) apparent merit or (b) an employee request that the matter not be investigated or disclosed to the human resource department or anyone else.
  3. Respond proactively and promptly to inappropriate behavior that the supervisor is aware of, whether or not a complaint has been made, by immediately and thoroughly investigating the situation or by having the human resource department (or other designated company representative) do so.
  4. Remedy inappropriate behavior promptly, by disciplining the wrongdoer(s) and providing appropriate corrective relief to the offended employee(s).
  5. Resist any temptation to retaliate against anyone who in good faith (a) raises a complaint of discrimination or harassment or (b) participates in an investigation.
  6. Reward with praise the employee who in good faith raises a concern regarding discrimination, harassment, or other inappropriate conduct. Because of confidentiality needs, the praise often times will need to be provided in private, although sometimes the praise also can be delivered generically at a staff meeting (which will help all employees more fully appreciate that the company takes its commitment to a discrimination- and harassment-free workplace seriously).
  • Supervisors’ ‘Six Rs’