Sexual Harassment – The Roadmap to Avoid Liability

Two years ago the United States Supreme Court issued two landmark opinions (Burlington Industries v. Ellerth and Faragher v. City of Boca Raton) which have dramatically changed the way employers investigate and defend charges of discrimination/harassment. These decisions have provided employers with a powerful two-prong affirmative defense to employee claims.

The Court held that employers can insulate themselves against liability for discrimination/harassment charges by establishing: (1) the employer exercised reasonable care to prevent and correct discriminatory or harassing behavior, and (2) the complaining employee unreasonably failed to utilize the company’s internal complaint procedure.

The first prong of this defense requires that an employer have a formal, written discrimination/harassment policy and internal complaint procedure in place and that the policy and procedure be communicated to all employees. This prong also requires the employer to promptly and effectively investigate and resolve employee complaints made pursuant to the policy. Employee training is essential to establishing the first prong of this two-prong affirmative defense.

All employees, including supervisory, management and executive personnel, must be trained about the company’s discrimination/harassment policy and complaint procedure in order for the employer to successfully assert the Ellerth/Faragher affirmative defense.

The United States Court of Appeals for the Fifth Circuit recently reinforced the employer’s affirmative defense by officially adopting the “Supervisor Sexual Harassment Roadmap.” This Roadmap, which applies to all types of discrimination/harassment claims, outlines the path an employer must travel to sustain the affirmative defense.

The Roadmap makes it clear that the key way for employers to successfully defeat claims of discrimination/harassment is to regularly conduct in-house training for all employees on how to identify, prevent, and correct discriminatory or harassing conduct. This training will alert employees to the company’s internal complaint procedures and help ensure the workplace is free of inappropriate behavior. The Labor and Employment attorneys at Thompson Coe regularly conduct these type of training sessions.