|EEOC Harassment Taskforce Takes Action|
In the last month, the Equal Employment Opportunity Commission (EEOC) has filed seven sexual harassment lawsuits against employers nationwide and has hinted that more litigation may follow. This is a shift from the Taskforce’s most recent activities focused around providing guidance and recommendations. The primary theme of these lawsuits is an allegation that the company failed to take appropriate action, either to investigate or to otherwise address the alleged hostile environment.
The press releases accompanying the lawsuits state that “preventing workplace harassment through systemic litigation is one of the national priorities identified by the EEOC’s Strategic Enforcement Plan.” With this shift in focus employers should be closely examining these issues at all levels of the company, from the board room to the employee working remotely. Three of the lawsuits involved the use of a staffing agency, independent contractors or a franchise structure, so employers should take sexual harassment allegations seriously, even when they deny joint-employment status.
Employers should also be aware of a case released this month by the Third Circuit (Minarsky v. Susquehanna County) that determined that a four-year delay in notifying the employer of sexual advances made by her immediate supervisor did not automatically deny the employee’s rights to file a claim. In this case, the employee stated she did not report the harassment sooner because she needed the job to pay for medical bills and she had learned that prior complaints by others had not led to any substantive reprimand.
This determination is a departure from precedent, where courts have previously viewed an employee’s failure to report persistent sexual harassment as being unreasonable and insufficient to support a legal claim, particularly when the company has an established policy to make complaints. Here the Third Circuit clarified that “a mere failure to report one’s harassment is not per se unreasonable. The passage of time can be one factor while analyzing several other factors. Because workplace sexual harassment is highly circumstance-specific, the court determined it is a question for the jury, not the judge, to determine whether the employee’s subjective belief of potential retaliation from reporting harassment is well-founded.”
It is important that company policies provide a complaint mechanism that does not deter reporting. Be careful of using terms like “zero tolerance” that may deter some individuals from reporting because they don’t want the accused to be terminated. Instead, the policies should be structured around proportionate discipline, as every instance of alleged harassment may not require immediate termination of the accused. Anti-harassment policies must be backed up with specific action plans and companies should strive to promote a culture that provides a safe workplace for all employees.
You can read more about components of a comprehensive harassment policy in our earlier article: www.unitedemployers.org/page/SexualHarassment
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