While the year has not yet come to a close, it is not too soon for year-end predictions, including a prediction that 2017 will be known as the year of sexual harassment. Recent accusations of sexual misconduct — in the entertainment industry, in government, in media and technology companies, leading to the #Metoo movement and protests on the streets of Los Angeles and elsewhere — have created a heightened focus on the problem of harassment in the workplace. In addition to affecting employee morale, a company's failure to deter harassment or to appropriately respond to a complaint could result in lawsuits, which in turn may create negative publicity and financial harm for the company, even if the suits prove unsuccessful.
For years, courts have held that employers will be liable for sexual harassment by their supervisors, subject to limited exceptions. Approximately 20 years ago, two seminal Supreme Court cases held that employers potentially could avoid liability by raising a defense which, in part, requires employers to prove that they had exercised reasonable care to prevent and correct the wrongful behavior. Whether the employer has a clear anti-harassment policy and has communicated this policy to its employees through effective training programs is critical in proving this defense. Employers should also be sure that their anti-harassment policies not only prohibit harassment but also ban retaliation against any employee who, in good faith, reports workplace misconduct or assists in related investigations.
An employer's legal obligation to combat workplace harassment varies by state and local laws. We at Lowenstein Sandler can help provide advice as to the legal requirements that govern your business and how you can best satisfy them. We emphasize the importance of not only setting forth a workplace anti-harassment policy but also diligently educating employees about your policies and procedures.
If you have not yet adopted an anti-harassment program for your company and trained employees on your policy, we highly encourage you to do so. The attorneys in Lowenstein Sandler's employment practices group are available to answer any questions you may have about sexual harassment policies and training or any other employment matter.
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