Anti-Harassment Training: Well Worth the Investment

An employer is generally responsible for the unlawful actions of its supervisory employees regardless of whether the employer took any measures to prevent or correct those actions. However, when harassment is the unlawful conduct at issue, federal law and some state laws provide an employer with the opportunity to defend itself in certain circumstances by demonstrating that it took the preventative measure of engaging in anti-harassment training and that it responded appropriately where harassment occurred.

The United States Supreme Court decided two cases in 1998 that officially established anti-harassment training as an important tool for employers. The companion cases, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, set forth a two-part test for employers to determine if a company should be held accountable for the actions of its supervisors in cases in which the plaintiff suffered no tangible adverse employment action. The first part of the test is whether the employer took reasonable care to prevent and correct the harassment. The second part of the test focuses on whether the employee took advantage of the methods that the employer provided to remedy the harassment.

Since these decisions, other courts have repeatedly held that it is not enough for an employer to merely establish an anti-harassment policy. Instead, employers must train their employees about the policy and address any harassment claims in a prompt and complete manner. A few exemplary cases are discussed below.

In Reed v. MBNA Marketing Systems, Inc., a recent case decided by a Federal District Court in Maine, an employer escaped liability where a supervisor had sexually harassed an employee. In that case, the Court found that although the supervisor’s inappropriate comments and unwanted sexual contact with the employee constituted sexual harassment, the employer was not responsible for these actions because it had taken steps to prevent and correct this type of harassment. Specifically, the employer met its burden by showing that it disseminated an anti-harassment policy and complaint procedure, and that it had provided training to explain the policy to all of its employees.

A Federal Court of Appeals further emphasized the importance of training employees on harassment in Shaw v. Autozone, Inc., a case in which a manager at an automotive parts retailer was accused of making sexual comments to an employee. The employee sued the company seeking to hold Autozone responsible for the supervisor’s actions. By showing it regularly trained its employees and managers on harassment prevention, the company was able to convince the Court that it should not be found responsible for the supervisor’s actions.

The opposite result was recently reached where an employer failed to provide any training to supplement its anti-harassment policy. In EEOC v. Harbert-Yeargin, Inc., a Federal Court of Appeals upheld a $300,000 verdict for an employee and found the employer liable for a supervisor’s sexually harassing conduct despite the fact that the employer had an anti-harassment policy in place. The Court noted that several employees testified that they were not aware of the existence of the anti-harassment policy and had not received any training concerning the policy. At least one manager also testified that he had never received any anti-harassment training on prevention or proper investigation of complaints.

In addition to taking steps to prevent future harassment, an employer needs to respond promptly and effectively to resolve complaints to successfully defend itself in a lawsuit based on the harassing conduct of a supervisor. For example, in Bennett v. The Progressive Corporation, a Federal District Court ruled in the employee’s favor because the employer had not taken reasonable steps to effectively respond to an employee’s complaints that her supervisor sexually harassed her. This ruling was based in part on the fact that the employees responsible for investigating harassment complaints had no experience in that area and had not received any training or protocol to conduct the investigation.

It is important for employers to recognize that the reasoning applied by courts in sexual harassment cases has also been applied to other forms of discrimination and harassment. Courts examining cases involving disability, religion, national origin and race harassment are looking closely to determine whether an employer took proper steps to prevent such discrimination and whether the employer responded appropriately to a claim. For example, in Texas an employee recently prevailed in a race discrimination lawsuit brought against the company due to the actions of a supervisor, primarily based on the inadequacy of the company’s training of its managers on racial harassment issues.

Although certain jurisdictions, such as Massachusetts, generally hold employers strictly liable for the actions of their supervisors, the cases discussed above highlight the vital role that a training program can play in limiting an employer’s exposure to harassment lawsuits. Moreover, some states may eventually decide to eliminate this "strict liability" standard. Indeed, the California Supreme Court is poised to decide whether California will adopt the Faragher-Ellerth defense, as the issue has been raised on appeal in a case now pending before that Court. The above cases also demonstrate how critical it is to respond swiftly and fully to harassment claims. For employers seeking to eliminate risk down the road, proactive training is well worth the effort.