What Does It Mean To Have An Effective Sexual Harassment Policy In The Wake Of Recent Supreme Court Decisions?

ABA Institute's Mock Juries Interpret New Supreme Court Standard Last June, the United States Supreme Court issued two opinions that sought to clarify when an employer would be liable for sexual harassment. Those two cases also established for employers a new affirmative defense: In certain circumstances, an employer would not be liable for sexual harassment, if the employer exercised "reasonable care" in preventing sexual harassment and promptly correcting any that may have occurred, and if the employee failed to take advantage of the employer's complaint procedures or corrective processes.

In November, as part of the annual ABA National Institute on Sexual Harassment in San Francisco, a nationally recognized jury consultant brought together two mock juries to help determine how jurors might give content to the Supreme Court's new standards. The two groups of jurors sat through a carefully designed mock trial involving claims of sexual harassment. Michael Reiss, who heads Davis Wright Tremaine's Employment Litigation Section, served as one of the lawyers on the trial team. By observing the jurors' deliberations and debriefing them after the trial, we now have some initial evidence on how juries might view this new standard. Both juries ruled for the plaintiff, revealing that implementing the Court's seemingly simple standard may be challenging for employers.

In Faragher and Ellerth, the Supreme Court abandoned the long-standing distinction between "quid pro quo" cases and "hostile environment" cases as a means of determining when the employer would be liable for sexual harassment. The Court held that employers could be liable for sexual harassment, regardless of whether senior management knew or should have known that the harassment was occurring. If the harassment culminated in some tangible employment consequence, such as a discharge, demotion or undesirable reassignment, then the employer would be strictly liable, and no affirmative defense would be available. However, if the employee suffered no tangible job detriment, as in a typical "hostile environment case," then the employer could assert a two-part affirmative defense, which would enable the employer to avoid liability.

To establish this affirmative defense, an employer will need to prove (1) that it exercised "reasonable care to prevent and correct" any sexually harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

Beyond that general term, however- reasonable care to prevent and correct harassment-the Faragher and Ellerth decisions do not provide more specific guidance to employers. It will be up to juries to provide greater meaning to those terms.

How might a jury interpret "reasonable care to prevent and correct" sexual harassment? Many employers have already taken the first step by developing an anti-harassment policy. The question remains: Will that be enough?

After watching the trial of a sexual harassment case as part of the ABA's National Institute on Sexual Harassment, both juries in San Francisco rejected the employer's attempt to establish an affirmative defense and found in favor of the plaintiff. Based on these jurors' deliberations and their debriefing afterwards, DWT attorney Michael Reiss offers the following suggestions to employers who would seek to protect themselves in the wake of Faragher and Ellerth:

Every employer should have an anti-harassment policy that clearly informs employees that workplace harassment will not be tolerated and will result in disciplinary action.

While an anti-harassment policy may appear sufficient to the employer, the jury may think otherwise. During deliberations, both mock juries felt the employer's policy was inadequate, even though the policy was strongly worded and quoted the language of the EEOC guidelines verbatim. The jurors felt the policy was written in "legalese," unintelligible and beyond the understanding of ordinary workers. The jurors wanted clear and simple language; and they wanted examples of the types of behaviors covered by the policy.

The policy must contain a complaint procedure that is also easy to understand, and that includes reporting options so the complaining employee can bypass the alleged harasser, as well as assurances that employees who do make claims of harassment will be protected from retaliation.

The juries were concerned about the location of the policy and how it was distributed to employees. In the mock trial, the employer's anti-harassment policy was made part of an employee handbook. The jurors felt the policy had been "buried," where it would be difficult for employees to find. They wanted the policy distributed as a separate document, and they wanted it distributed at the time of hire, and widely disseminated to employees and posted in the workplace thereafter.

Employers should have clear procedures-with appropriate documentation-to ensure that all employees, from the CEO to every new hire, receive actual notice of the policy. In Faragher, despite the fact that the City of Boca Raton had adopted a sexual harassment policy addressed to all employees, the Court found that the City "completely failed to disseminate its policy among employees of the Marine Safety Section, with a result that . . . many [employees] were unaware of it." Employers should regularly remind all employees, including temporary employees and employees working at remote, satellite or branch locations, of the employer's anti-harassment policies, make sure the policies are updated and prominently posted, and document these reminders.

In each of their deliberations, the mock juries focused heavily on the need for training. Several jurors recounted that in "their" companies, training was offered on the meaning of sexual harassment, the company's policy against it, and what should be done when it occurs. The jurors were virtually unanimous in concluding that a company could not have exercised "reasonable care" in preventing sexual harassment, if it did not offer such training. The jurors wanted to see interactive training, with examples and video's.

Employers should provide training to ensure that managers and employees understand what constitutes sexual harassment, and how the employer's complaint process operates. For the employer's protection, it is also wise to document who attended the training, when it occurred, and the topics that were covered.

At the ABA Institute in San Francisco, both juries faulted the employer for failing to investigate the plaintiff's complaints quickly enough, for failing to engage in a sufficiently thorough investigation, and for failing to "close the loop" by getting back to the complainant at the conclusion of the investigation and informing her of its outcome and of the steps the employer was taking to cure the problem. Each of these elements is necessary for the employer to establish its affirmative defense. Each is an area in which employers sometimes fail to respond.

Employers need to take seriously any employee's complaint of harassment. The employer must act promptly to investigate the complaint. The investigation itself must be thorough. It is best conducted by properly trained investigators, whether they are company personnel or outside investigators. The employer must take appropriate action designed to end any harassment that may have been uncovered. The employer must close the loop with the person who brought the complaint, letting him or her know that appropriate action has been taken, that there will not be any recurrence of harassing conduct, and assuring the complainant that there will be no retaliation. And the employer should periodically check back with the complainant (for example, after 30, 60 or 90 days), to make sure that there has been no further harassment or retaliation.

In two cases last June, the United States Supreme Court held out to employers the possibility of an affirmative defense against claims of sexual harassment. Where the employee had not suffered an adverse job consequence, an employer could avoid liability, if the employer could prove (1) that it had exercised reasonable care to prevent sexual harassment and to correct it if it occurred; and (2) that the employee had failed to complain or take advantage of the employer's corrective procedures. In most cases, it will be up to a jury to determine whether the employer has met its burden of proof and established this defense. That may not be an easy task for the employer to accomplish. While circumstances will vary, and each case is likely to be decided on its own unique facts, the deliberations of two mock juries during the ABA National Institute on Sexual Harassment offer some guidance to employers in this area.