Newsletter Issue 3

Some times it may appear that an employer has no defense against complaints of sexual harassment or other EEO issues. However, in the cases of Ellerth and Faragher the Supreme Court declared: “Employers must show they exercised reasonable care to prevent and promptly correct any sexually harassing behavior.” As several court decisions applied these criteria the Affirmative Defense doctrine developed.

Affirmative defense has two prongs:

• The employer exercised reasonable care to prevent and promptly correct harassment.
• The employee unreasonably failed to report the harassment or otherwise avoid harm.

• Have a clear, fully disseminated Sexual Harassment policy that gives employees multiple sources for reporting harassment and ensure the policy is effectively enforced.
• Train supervisors and employees on sexual harassment and other EEO issues.

It is vital that the training clearly explains the policy and procedures to follow in preventing and reporting harassment and other forms of discrimination. Everyone trained should sign a document or list indicating that s/he attended the training. Additionally, a copy of the policy should be given to each employee and have the employee sign a receipt stating that s/he received a copy. This places responsibility on the part of the employee to take appropriate action to report the harassment and avoid harm.

There is no way to overstate the need for training employees, especially supervisors. If an employer cannot show that it has an effective, enforced harassment policy and/or cannot demonstrate that employees were trained, the affirmative defense will not apply. A quick review of court cases over the last few years will reveal that failures of this nature has cost employers many millions of dollars in penalties. The seriousness of this matter can be realized in the enactment of California State Law 1825 that requires employer to give every supervisor 2 hours of Sexual Harassment Training every two years. Other states are now requiring the same program.

You might review the RPL Internet training programs as our EEO training courses meet all state requirements.