The costs of sexual harassment in the workplace to both employers and employees cannot be overstated. Employers face the prospect of huge legal fees, settlements, judgments, and lost productivity due to claims of sexual harassment, regardless of the merit of claims. Employees who are the victims of sexual harassment could suffer emotional distress, lose career opportunities, and be forced to litigate their claim for years. For larger companies, the prospect of a judgment in Federal Court is even more daunting, as such judgments can include attorney’s fees which can easily reach hundreds of thousands, regardless of the amount of damages awarded.
Federal and state laws protect employees from unwanted sexual harassment in the workplace. Liability under both Louisiana and Federal law may be based on either “quid pro quo” sexual harassment or “hostile work environment.” “Quid pro quo” sexual harassment occurs when an employer or supervisor with the authority to do so makes a condition of employment contingent on a sexual favor. This is the most common form or sexual harassment and is the one with which most employers are familiar. “Hostile work environment” harassment can occur when an employee belongs to a protected group; they were subjected to unwelcome sexual harassment; the harassment was based on sex; the harassment affected a term, condition, or privilege of employment; and that the employer knew or should have known of the harassment and failed to take proper remedial action. It is important to note that this sexual harassment does not have to be motivated by sexual desire, it merely requires a showing that members of one sex are exposed to disadvantageous terms and conditions of employment to which members of the other sex are not exposed. Many employers may not even be aware that this type of harassment is actionable.
For these reasons, it is in both the interest of the employer and employees that every business has a sexual harassment policy. A sexual harassment policy should be in writing and distributed to every employee with a signed receipt when each employee is hired. A good sexual harassment policy should outline what is considered sexual harassment under state and Federal law and illustrate that such behavior is unacceptable. Most importantly, the policy must contain provisions notifying employees of procedures for reporting sexual harassment to their superiors. The policy should also contain provisions for notifying someone outside the management of the company in the case that the manager was the offender. Finally, the company should make certain that when an employee reports sexual harassment that the claim is investigated and proper action is taken. It is advisable that such investigations should be performed by an independent party such as an outside attorney.
Every employer, regardless of its size, should have an attorney draft a sexual harassment policy. The existence of a sexual harassment policy can protect the employees of a company while at the same time shielding the employer from liability. As long as a proper sexual harassment policy is in place and the procedures are followed under the policy, the employer is protected from liability under the sexual harassment laws.
In addition to a formal sexual harassment policy, employers can take other steps to protect their employees and shield themselves from liability to sexual harassment claims. Every company should take steps to train their managers and supervisors on the implications of sexual harassment in the workplace and the procedures for dealing with such activity. Employers can also obtain liability insurance which will pay for legal fees incurred when sexual harassment claims are made. When such insurance policies are obtained, the insurance carrier will usually require that a proper sexual harassment policy is in place before providing coverage which is certainly an appropriate requirement.