Employment Law Updates

WHY SHOULD EVERY EMPLOYER HAVE AN ANTI-HARASSMENT POLICY?

Every football fan has heard it a thousand times: “The best defense is a good offense.”  But did you know the cliché applies equally well to the employment arena?  In 1998, the U.S. Supreme Court decided two landmark cases that provide an affirmative defense to employers for sexual harassment.  If the employer can show that it had an effective anti-harassment policy in place at the time of the alleged harassment, then the employer can take advantage of this defense so long as the reporting employee was not fired or subjected to an otherwise "tangible employment action."

Keep in mind that an anti-harassment policy should be in writing, and your employees must be aware of the policy and how complaints should be reported.  By being proactive and implementing an effective anti-harassment game plan, you will discourage inappropriate conduct and lessen your potential liability in an easy and cost-effective manner.

AN EMPLOYEE'S ABILITY TO REPORT DEPENDS ON YOU

“Coulda, woulda, shoulda.”  That’s the message from an Oregon federal court judge, who recently ruled that an employer sued for sexual harassment cannot defend the claim by arguing that the victim failed to report offensive conduct unless the employer can establish that (i) its anti-harassment policy includes instructions for reporting, and (ii) the policy was disseminated to the employees before the need for reporting occurred.  We recommend that you review your sexual harassment policy to make sure it includes instructions for reporting, and that the reporting process is not too burdensome for employees.  For example, employees should be able to report verbally or in writing, and while the employer may prefer to direct complaints to a particular staff member, the policy should state that the employee may report to any member of management.  Also, review your procedure for disseminating your anti-harassment policy.   Make the policy part of your employee handbook and require the employee to sign an acknowledgement of receipt, or provide the policy with a signature page as part of the orientation process.  However you decide to disseminate it, make sure you can show that the employee “shoulda” reported it!