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  • Understanding Employer Liability for Workplace Sexual Harassment

    The topic of sexual harassment has become a hot button issue largely due to the recent rise of the “Me Too” movement which took off after allegations of sexual harassment were made against a number of prominent public figures. The Me Too movement has helped to expose the perceived prevalence of sexual harassment and assault, particularly in the workplace. The increased sensitivity and awareness surrounding sexual harassment is not limited to Hollywood or those in the public eye. The Me Too movement has empowered people in all walks of life who have allegedly been victims of sexual assault or harassment to speak up about their alleged experiences. This means that employers of all sizes are more likely to be potentially held liable for sexual harassment that occurs in the workplace.

    Most employers know that they are required to have policies in place regarding workplace sexual harassment but many are unaware of exactly what the policies must contain and the potential for liability if these policies are not properly adhered to. According to the EEOC, employers are automatically held liable for harassment by a supervisor that results in an adverse employment action. Adverse employment actions include termination, failure to promote or hire, or a loss of wages.

    Employers can also be held liable for a supervisor’s harassment that results in a hostile work environment. A hostile work environment is one that an average person would find difficult or uncomfortable to work in due to harassment or discrimination. However, employers can avoid this type of liability by proving that 1) the employer reasonably tried to prevent and promptly correct the harassing behavior and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. These defenses are all the more reason to implement and follow a sexual harassment policy.

    Employer liability can also stem from harassment by a non-supervisory employee or non-employees that the employer has control over, if the employer knew or should have known about the harassment and failed to take action. This makes it imperative that employers take all claims of sexual harassment seriously and investigate every claim thoroughly to help avoid potential liability and costly litigation down the line.

    If an employer is found liable for workplace sexual harassment, they can be subject to a number of penalties, including compensation to employees for past and future wages lost as a result of the harassment, as well as the victim’s attorneys’ fees and costs.

    The increased awareness around sexual harassment in the workplace makes it more important than ever for employers to be aware of what is going on in the workplace and how to handle claims of sexual harassment when they arise. Employers should familiarize themselves with their obligations and implement effective policies and procedures to ensure that all claims of sexual harassment in the workplace are thoroughly investigated and properly handled.

    If you, or your organization, have any questions concerning employment related issues, please contact Cynthia A. Augello at 516-357-3753 or via email at CAugello@cullenanddykman.com.