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No matter how comprehensive a company’s sexual assault policy may be, what truly matters is how the employer implements that policy when the chips are down. An employer cannot simply point to a rigid sexual harassment policy as evidence that they are proactive in tackling sexual harassment claims. The employer must succeed both in writing and in action when it comes to effectively preventing and responding to sexual harassment. If an employer is negligent in responding to an employee’s sexual harassment claim, they could be held liable for not correcting hostile working conditions or reprimanding quid pro quo harassment.
Legal Responsibilities of Employers in Sexual Assault Cases
If a private company employs 15 or more people, the company is subject to enforcement under Title VII of the Civil Rights Act, by the U.S. Equal Employment Opportunity Commission. The company may also be subject to enforcement of applicable state laws.
Those who qualify for protection under the EEOC include:
- Job applicants
- Former employees
- Applicants or participants in training or apprenticeship programs.
There is no discrimination on the basis of citizenship status, so long as the individual is employed by U.S. company. The protection even extends to those who work for American companies from overseas.
An employer will be held liable for a sexual harassment incident by a supervisor, regular employee or non-employees over whom they have control if:
- they knew or should have known
- did not reasonably try to prevent and promptly correct the harassing behavior
- the employee proactively took advantage of any preventive or corrective opportunities provided by the employer.
If the harassment occurred by a supervisor, the employer is specifically liable if the harassment resulted in termination, failure to promote or hire, or loss of wages.
The EEOC stipulates that harassment can occur under a number of conditions, including when:
- The harasser is the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
- The victim is not the person harassed, but anyone who was affected by the offensive conduct.
- Unlawful harassment occurs without economic injury to, or discharge of, the victim.
Employers are obligated to communicate to employees that there is zero tolerance for incidences of sexual harassment. They are encouraged to (1) establish effective sexual harassment complaint and response policies; (2) provide employees with anti-harassment training; and (3) take prompt, appropriate action when confronted with a valid complaint. All employers should endeavor to create a working environment that is safe and comfortable, and where employees feel free to raise their concerns, confident that such concerns will be wholeheartedly addressed and taken care of.
How Employees Should Respond to Sexual Harassment
Employers are given some flexibility in how they may respond to the offender in a sexual harassment claim.
Appropriate responses to the offender include but are not limited to:
- Reprimand, by an oral or written warning
- Ongoing monitoring
- Reduction of pay
- Transfer to a different department
- Training or counseling.
Appropriate responses toward the victim include:
- Allowing employee to take leave, which would not count against regularly allotted days of leave.
- Invalidating any negative employee evaluations that were tied to the harassment incident.
- Ensuring offender apologizes for their misconduct.
- Monitoring to guarantee no retaliation is taken against victim by offender or other staff.
- Correcting harm incurred by the harassment, possibly including compensation for losses.
Effective Sexual Harassment & Assault Policies
When finalizing a sexual harassment and assault policy, an employer should seek the advice and review of an attorney experienced with employment and sexual harassment law. Elements of an effective sexual harassment policy include:
- A clear and concise description of what amounts to sexual harassment.
- An assertive statement that such conduct is firmly against company policy, federal and state law and will not be tolerated.
- An easy to understand procedure for employees who have been harassed, including how to report the incident and to whom.
- A detailed explanation of how the company will handle and evaluate the complaint, immediately and appropriately.
- A statement that the employee will be protected from retaliation when the claim is reported and while it is being investigated.
- Assurance the employee’s identity will be kept private within reason.
When an Employer’s Negligence Results in Sexual Harassment, or Perpetuates It
There are a handful of ways in which an employer can be negligent with regards to employee safety, and ways that negligence can lead to or perpetuate the sexual harassment of one employee by another. Negligence in employment is a legally actionable tort for which the victim could sue. The two types of negligence a harassed employee can sue for are (1) negligent employee retention; and (2) negligent hiring.
Negligent Employee Retention
Negligent employee retention occurs when an employer becomes aware that an employee is unfit for employment, but continues to employ them anyway. In such a case, the employer, while aware of the situation, did not take any corrective measures, like investigating, reassigning or discharging the unfit employee. An employee is considered unfit if he or she is a danger to others or are misusing their authority and responsibility. Negligent retention is closely related to the offense of negligent supervision, in which case a supervisor fails to effectively monitor the actions of an employee they have been charged with monitoring. If the employer or supervisor is aware of the misconduct, they are expected to either terminate or penalize the offending employee.
In the event that an offending employee had an accessible record or reputation for misusing workplace authority, and the employer could have discovered this record or reputation through due diligence, the employer could be held liable for negligent hiring. For example, if an employee is on record for committing sexual harassment and fired on that count, proceeds to apply to a new job and commits harassment at the new job, the victim could claim negligent hiring because the previous harassment was on the employee’s record.
There are certain preventative measures to safeguard against negligent hiring. The most straightforward is to reasonably investigate the employee’s background prior to hiring. Conducting a criminal background check alone may not be sufficient to protect the employer from liability. It could, however, be a credit to their defense if they are held liable for the actions of an employee. It should be noted that knowledge of a criminal record alone does not constitute negligent hiring, because those with criminal records are protected to some extent in their right to seek gainful employment. A finding of negligence on the part of the employer would depend greatly on the circumstances of the case.
What To Do If Your Employer’s Negligence Enables Sexual Assault
If you have been sexually assaulted in the workplace and your employer’s negligence contributed to or enabled the assault, you may have an actionable legal claim. Regarding the harassment you encountered, please note that the U.S. Equal Opportunity Commission specifically states: “Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.” If your assault created such a work environment and you have reason to believe your employer did not take the steps necessary to protect you from and respond to the assault incident, you should speak with a skilled sexual assault attorney.
Attorneys Gilman and Bedigian are ready to hear your case and provide you with free consultation. They can help you navigate this complex legal process, skillfully present your case in court and most importantly, help bring your negligent employer to justice. Contact Gilman and Bedigian today.