It is nicely established now beneath federal Title VII law that an employer is liable for actionable sexual harassment triggered by a supervisor with “quick (or successively higher) authority more than the employee.” Nonetheless, in situations exactly where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer could raise to stay away from Title VII liability and damages.
Beneath such affirmative defense irrespective of whether an employer has an anti-harassment policy is relevant proof. Also significant is productive supervisory coaching and instruction of personnel on the harassment policy and complaint process.
Coaching and educational programs for all employees take on an even higher degree of significance beneath Hawaii state law, HRS Chapter 378. State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors.
Though the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation equivalent to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct beneath Illinois state law even although the supervisor did not even have direct supervisory authority over the Complainant.
The April 16, 2009 Illinois decision will definitely be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation. Accordingly, it is vital that Hawaii employers have an understanding of the importance of obtaining an successful policy and company-wide training system on not only a defense to a sexual harassment claim, but prevention.
I. The Significance of Getting an Effective Harassment Policy
A. The Faragher/Ellerth Defense
Getting an productive sexual harassment policy and instruction program will considerably raise the likelihood of avoiding liability below the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court.
Exactly where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment choice, the employer may perhaps prevent liability by showing that: (1) the employer exercised affordable care to prevent and promptly appropriate any harassing behavior and (2) the plaintiff unreasonably failed to take benefit of any preventive or corrective opportunities supplied by the employer to stay clear of harm. “A tangible employment action constitutes a important adjust in employment status such as hiring, firing, failing to promote, reassignment with considerably diverse responsibilities or a decision causing a considerable alter in rewards.”
The importance of the affirmative defense was considerably improved by a U.S. Supreme Court’s choice in which the Court held that the defense is obtainable in constructive discharge cases unless the plaintiff quits in a affordable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in spend.
A zero-tolerance harassment policy have to fit the atmosphere and workers:
Whilst proof that an employer had promulgated an antiharassment policy with complaint process is not important in every single instance as a matter of law, the have to have for a stated policy appropriate to the employment circumstances may possibly appropriately be addressed in any case when litigating the 1st element of the defense. The policy really should be written in plain English, so that all employees regardless of their educational level or background can comprehend it … [a] policy should really include a clear and precise definition of unlawful harassment so that employees know what kind of conduct is prohibited by the policy and will be able to recognize that conduct need to it happen.
Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense.
B. Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure.
(1) Create in straightforward English.
(two) Incorporate a clear definition and examples of prohibited conduct and make it broad adequate to prohibit all forms of harassment.
(3) State the company’s “zero-tolerance” philosophy in the policy regarding all types of harassment,
(4) Designate at least two specially educated managers who will be responsible for investigating harassment complaints for the corporation.
(5) Decide the complaint process that will be utilized to investigate complaints of harassment by supervisory employees, co-workers and outsiders.
(6) Present a “clear chain of communication,” allowing staff to step outside of the standard hierarchy in the event the supervisor is the harasser and look at possessing a toll-absolutely free quantity workers can get in touch with.
(7) State that employees who report prohibited conduct will be protected from retaliation.
(eight) State that the employer will promptly investigate the matter in an objective and discrete manner.
(9) Supply the type of disciplinary action to which offenders can count on to be subjected.
(10) State that the employer will also take remedial action.
( www.kaplunk.co.uk/careers-advice ) Train your management employees and line workers on the policy and procedure.
(12) Have each employee sign an acknowledgment form that they have received a copy of the policy and process, and that they have received training on the harassment policy.
C. The Faragher/Ellerth Defense and Hawaii Law
Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against men and women in virtually all elements of employment. However, it remains an open question regardless of whether an employer, beneath Hawaii state law, can assert the Faragher/Ellerth affirmative defense.
At the moment, beneath regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of irrespective of whether tangible action is taken: