Sexual Harassment Training May Reduce Exposure to Employer Liability

January 05, 2013

Employers can minimize their exposure to liability in sexual harassment claims by implementing effective sexual discrimination training for supervisory and non-supervisory employees. Harassment in the workplace can result in drawn out litigation and vicarious liability for an employer when proper training and procedures are not in place.

Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against an individual, because of an individual's race, color, religion, sex or national origin. Sexual harassment is one form of sex discrimination, which can easily create a hostile work environment and prompt lawsuits.

Examples of sexual harassment

Verbal or physical conduct that might rise to the level of sexual harassment includes:
- Telling inappropriate jokes or pressuring a subordinate to go on a date
- Referring to an employee as "honey"
- Giving a shoulder or neck massage
- Intentionally touching or brushing up against another individual

In nearby California, state law requires employers with more than 50 employees to conduct bi-annual sexual harassment training for all supervisors. The training must be effective and more than simply sitting employees in front of a video. Prudent employers have trained managers and employees on ways to prevent harassment in the workplace, but the California law formalized these training requirements.

Even though Utah does not have a specific training requirement like California, there are still good reasons to implement training programs and reporting procedures.

Employer liability in harassment lawsuits

Vicarious liability means that an employer can be held responsible for the acts of its supervisory employees. For example, an employer may be liable if an employee reported sexual harassment to a supervisor, but the supervisor and ultimately the employer did nothing to stop the behavior.

Training and reporting programs may provide an employer with an affirmative defense in a sexual harassment claim. An affirmative defense can defeat a plaintiff's claim even if all the allegations are true. To utilize the affirmative defense, an employer must prove two requirements: "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

An employer that incorporates sexual harassment prevention training with initial employee orientation and has a procedure in place to report incidents of inappropriate behavior will be better insulated from vicarious liability. This is likely the case especially if the complaining employee completed training, but later failed to take advantage of a means to end the conduct (i.e. failure to report harassing behavior). Of course, if the employee has reported inappropriate conduct, the employer still has the responsibility to act promptly to investigate the allegations and stop the offensive conduct.

Employers, large and small, should routinely review their sexual harassment training and reporting procedures to ensure compliance with employment laws. A Utah business attorney can review company training and reporting procedures or help draft adequate documents with an eye toward reducing employer liability. Adequate procedures are not only legally required, but also foster a congenial work environment.

Article provided by Stavros Law, P.C.
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