Topic: Human Resources Law
Sexual harassment claims continue to cost employers hundreds of thousands, if not millions, of dollars in settlements and verdicts. Even innocent-seeming repartee among fellow employees can pose big risks. Recently, an off-work incident at a manager’s ranch led a school district to offer an employee $200,000 plus lifetime medical benefits in settlement of his claim. Proper training can teach supervisors and managers to spot troubling conduct early, and then take the necessary steps to prevent it from becoming a liability.
In California, such training is mandatory under Government Code section 12950.1. Employers with 50 or more employees must provide at least two hours of harassment prevention training to all supervisors every two years. Particulars of the training requirement are set out in the regulations of the Fair Employment and Housing Commission. The FEHC has also published aPowerPoint presentation that explains the regulations.
In addition to helping to reduce the threat of liability and ensuring compliance with California law, harassment training may have a substantial legal effect if the employer is the subject of a lawsuit. Under federal (Title VII) law, the employer can establish a complete defense to a harassment claim by showing (1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. This principle is known as the Faragher defense, after the case in which it was announced – Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
Although a complete defense is not available under California law, an employer may invoke the avoidable consequences doctrine to reduce the damages exposure in a harassment case. There are three elements: (1) the employer took reasonable steps to prevent and correct workplace sexual harassment; (2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered. See State Department of Health Services v. Superior Court, 31 Cal. 4th 1026 (2003).
The keys to effective harassment prevention training are:
- Adopt a firmly worded policy that bars harassment in the workplace.
- Establish a complaint process that encourages employees to take complaints of harassment to the human resources department, or to any supervisor whom they are comfortable talking to.
- Teach supervisors how to recognize harassing conduct, and to report such conduct to the appropriate person in the human resources department.
- Teach supervisors the importance of recognizing retaliatory conduct, and stopping it.
- Use problems based on real world examples to encourage discussion about how to deal with complaints of harassment.
Partner Calvin House will be presenting an audio conference devoted to harassment prevention training on June 26, 2012, from 10:00 am to 12 noon. Participate in the conference from the comfort of your office. For a special 20 percent discount off the regular registration price, register online at http://www.lorman.com with discount code F2716129, and priority code 15999. Or, call 866-352-9539.At a time when sexual harassment verdicts can reach $1 million plus, it is critical for employers to aggressively pursue strategies to limit liability for harassment claims. Training supervisors and managers on how to recognize and combat harassing behavior before it becomes actionable is one of the most effective strategies available.