Many companies have employee handbook provisions or separate policies addressing sexual harassment. While such policies and provisions are certainly recommended, they may not be enough. Case law suggests that in order to best protect against a claim for sexual harassment, employers would be wise to conduct routine sexual harassment training for all employees.
A defense known as the Faragher-Ellerth defense was born out of two cases decided by the United States Supreme Court in 1998. Under this defense, an employer can avoid liability for alleged harassment if the employer can establish: 1) that there was no adverse employment action; 2) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and 3) that the plaintiff/employee unreasonably failed to take advantage of any preventative or corrective avenues provided by the employer or otherwise failed to avoid harm. Employers can no longer simply rest on establishing an anti-harassment policy as sufficient to satisfy the second factor listed above.
In Clark v. United Parcel Service, Inc. (2005), 400 F.3d 341, the Sixth Circuit (which includes Ohio, Michigan, Kentucky and Tennessee) has ruled that instituting a written sexual harassment policy is not enough. The court in Clark explained that at a minimum, an employer’s sexual harassment policy must: 1) require supervisors to report incidents of harassment; 2) permit both informal and formal complaints of harassment to be made; 3) provide a mechanism for by-passing a harassing supervisor when making a complaint; and 4) provide training regarding the policy. Unfortunately, the court did not provide any guidance regarding how frequently employers should conduct such sexual harassment policy training.
Other courts are in line with the Sixth Circuit. In Bishop v. Woodbury Clinical
Laboratory, a court in Tennessee held that it was not enough for new employees to sign a form acknowledging receipt of an employee handbook containing a sexual harassment policy. Similarly, in 2012, in E.E.O.C. v. Management Hospitality of Racine, the Seventh Circuit found it insufficient to simply provide an employee handbook to all employees and have new employees watch a training video. From these opinions, employers should takeaway the fact if they are faced with a sexual harassment allegation, courts will be scrutinizing their sexual harassment policy training methods. The E.E.O.C. does offer some guidance. Based on the E.E.O.C.’s suggestions, sexual harassment training should at a minimum: 1) be “periodic”; 2) should detail the behaviors violating the policy; and 3) explain the responsibilities of those witnessing harassment or to whom harassment is reported.
Yearly harassment training for all employees is the best way to satisfy these suggestions. If you would like more information on sexual harassment training or would like one of our attorneys to conduct sexual harassment training for your company, please do not hesitate to contact us.