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A Word from the CEO
Vantage Points-Fall Edition
Premarital Agreements
Harassment Has No
Place in the Workplace
Protecting Your
Business From
Intellectual Property
Theft
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Max L. Corley, III
mlc@jenkinsfenstermaker.com
HARASSMENT HAS NO PLACE
IN THE WORKPLACE
Employers in West Virginia are faced with an array of risk management issues on a daily basis that threaten the continued viability and profitability of their businesses. One such issue is an employer’s potential liability to an employee for workplace harassment, even when the employer had no knowledge of the harassment or, having such knowledge, failed to take reasonable steps to prevent or end the harassment. Unfortunately, harassment in the workplace is a common occurrence. The belief that your place of employment is immune from this problem is unrealistic. Employers, therefore, must recognize this risk and take appropriate steps to prevent, handle and stop workplace harassment.
Workplace harassment is prohibited by federal and state law, including Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA) and the West Virginia Human Rights Act. These laws essentially have defined harassment as conduct that demonstrates an animosity toward an individual based upon his or her race, color, religion, sex, national origin, disability or age. Thus, harassment is prohibited on the basis of an individual’s membership in one of these protected classes.
There are generally two kinds of sexual harassment: 1) “quid pro quo” (Latin, meaning “what for what” or “something for something”) and 2) hostile working environment. “Quid pro quo” harassment typically means that sexual favors are being sought from the employee in exchange for either favorable treatment or protection from unfavorable treatment. “Hostile working environment” harassment is characterized by a work environment that is so sexually charged that it adversely affects an employee’s job performance or job opportunities.
An employer’s liability for harassment and its available defenses will depend upon the source of the harassment. When the source of the harassment is management personnel, some plaintiffs’ lawyers argue that the employer is “strictly liable” for the conduct, irrespective of whether the employer knew of the offending conduct.
An employer may avoid vicarious liability from the actions of a supervisor when no tangible employment action is taken against the employee (i.e. demotions, undesirable work assignments, lack of promotion) and the employer can show that:
(1) It exercised reasonable care to prevent and promptly correct any harassing behavior, and
(2) The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
On the other hand, when the source of the harassment is a co-worker, an employer may be liable, depending on the employer’s knowledge of the offending conduct, the effectiveness of the employer’s remedial procedures and the adequacy of the employer’s response. Thus, an employer that has established clear rules prohibiting sexual harassment and has provided an effective mechanism for receiving, investigating and resolving complaints of harassment may not be liable in the case of co-worker harassment when the employer has neither knowledge of the misconduct nor a reason to know about it. Hanlon v. Chambers, 461 S.E.2d 473 (W.Va. 1995). Furthermore, a court will evaluate whether the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
So, what can employers do to prevent harassment claims? Employers should first develop a sufficient anti-harassment policy and a practical enforcement program. The policy should be written in a manner that ensures it will be enforced to the letter. The policy should instruct employees on actions they are to take and encourage the reporting of claims. The policy also should advise employees of the serious consequences to themselves and the employer for violations.
The employer also should develop a practical procedure to enforce the policy, including an effective grievance procedure. All complaints should earn the immediate attention of supervisors, managers and the personnel department. A non-attorney, in-house human resources manager is typically the best choice for an investigator; an outside human resources consultant is an alternative. As noted, one of the best defenses afforded employers in harassment claims is a prompt, thorough and impartial investigation of the complaint, including adequate documentation of the investigation. The employer also must follow up on the complaint and ensure that an appropriate response is forthcoming within a reasonable period of time.
Once the investigation is complete, the employer should provide prompt discipline if warranted by the investigation. The reasonableness of the employer's response depends on its ability to stop the offending conduct. Please note that courts have held that the accused harasser is entitled to a fair hearing before disciplinary action is taken. Any disciplinary notice should go into the perpetrator’s file; the harassment complaint should not be placed in the victim’s file. If no discipline is imposed, it should be explained and justified to the complainant.
Lastly, employers must take steps to avoid retaliation. It is unlawful, under both federal and West Virginia law, to retaliate against an employee for complaining about harassment.
In today’s litigious environment, employers are wise to consult counsel in drafting harassment policies and procedures or to have their existing policies and procedures reviewed to ensure effectiveness and compliance with West Virginia and federal laws. The prompt assistance and advice of counsel can be invaluable in preserving and strengthening an employer’s defense to a harassment claim.
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