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In the high-tech workplace thriller Disclosure, a computer manufacturing director (Michael Douglas) is seduced by his new boss (Demi Moore), without their employer's knowledge. Douglas hires a lawyer and the company pays him big dollars in settlement. Under the Supreme Court's new rulings on sexual harassment the outcome for the company might have been different, especially if it had in place proactive policies against sexual harassment. In Faragher v. Boca Raton and Burlington Industries v. Ellerth, the Court affirmed that an employee who rejects a boss's advances can sue their employer for sexual harassment, even if he or she suffers no job setbacks. Furthermore, the Court held that an employer is inherently liable for all workplace harassment, even if management had no knowledge of the offensive conduct. On the positive side, the decisions create a defense for an employer if it can show that a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and b) the aggrieved employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer. This defense is not available, and the employer is strictly liable, where the supervisor's actions culminate in an employment loss, such as discharge or demotion, for the employee. Thus, with a double-edged sword, the Court expands management's responsibility for harassment, but creates a defense for employers who are proactive. This presents employers with an opportunity and an imperative to reduce claims and liability through policies, employee training, and active management. In most technology companies, employees put in long hours. Work is a logical place to meet people. Inevitably, a dinner invitation is misconstrued or an office romance sours. While the Court's rulings do not give guidance on what is an adequate antiharassment effort, their practical effect is clear. Prudent employers should provide written antiharassment policies and training for all employees, establish an effective complaint procedure, and investigate and resolve all harassment complaints. Some employers use polices prohibiting intimate relations between supervisors and subordinates; a few have gone so far as to provide employee dating agreements designed to preclude liability if things do not work out. An effective sexual harassment effort must go beyond boilerplate prohibition, and make it easy for employees to raise complaints. A crucial test is the extent of employee awareness and management support. A policy provides little protection if employees and supervisors are not aware of their rights and responsibilities in preventing and exposing misconduct. The most critical element for defending a harassment claim is the company's response. Employers have a responsibility to, and risk liability from, both parties - the alleged harasser and victim. Many companies simply fire the alleged harasser, risking huge damages of the type awarded against Miller Brewing Co. after firing an executive for discussing a racy Seinfeld episode. Given these developments and the explosion of harassment claims, prudent employers must protect their business by promptly up-dating their employee handbooks, management guides, and personnel management systems. The Supreme Court has made it clear that employers who fail to heed the antiharassment call do so at the peril of their bottom line. © 1998 Jeffrey Berger REPRINTED FROM: TECHGAZETTE - August 1998, Vol. 1, No. 8 |
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