Publications
YOU CAN BE LIABLE, EVEN IF YOU DIDN’T DO IT
The Hidden Dangers in the Evolving Law of Sexual Harassment
Over the last ten to fifteen years, most companies have come to understand the importance of preventing sexual harassment in the workplace. The number of large, well-publicized sexual harassment verdicts has raised corporate consciousness and put the subject on the business radar screen.
You would think that would translate into a reduction in serious sexual harassment claims, but the reality seems to be otherwise. Our intuitive explanation for that phenomenon is twofold.
First, employers aren’t the only ones who have become more cognizant of potential sexual harassment liabilities. Employees, too, have become much more aware of the right to seek damages for offensive conduct. Moreover, the laws governing sexual harassment now provide for attorneys fees – an undeniable incentive for lawyers weighing the benefits of bringing such suits. The result: situations that used to provoke a “grin and bear it” response now provoke an EEOC claim.
Second, when companies began to realize the importance of avoiding sexual harassment claims, they were (properly) advised by their counsel that they could minimize their exposure if they developed, published and enforced policies forbidding harassing conduct. As a result, the policy manual became the sexual harassment cure-all in the business community’s collective wisdom. But in the late 1990's, the Supreme Court changed the rules, and the EEOC and various courts took a more activist approach to sexual harassment. Two things evolved out of all of this: the policy manual became only a first, and by no means the only, step required by the law; and the definition of what was commonly understood to constitute sexual harassment was itself expanded beyond the boundaries of common understanding.
Our goal (among others) in publishing Avoiding Lawsuits is to shorten the time it usually takes companies to recognize and implement major changes in the law. Typically, there is a substantial interlude, often lasting years, between changes in the law and changes in corporate behavior – even today, for instance, many companies continue to believe that their policy manuals are all that they need, and they continue to believe in the old definitions of sexual harassment – right up until the time they get sued.
In prior issues, we explained both the importance, and the impotence, of the policy manual. The United States Supreme Court has ruled, repeatedly, that as significant as a company’s policy manual might be, it is virtually worthless unless the company also trains its managers in the proper application of the rules mandated by the manuals, and by employment law generally. See, for instance, the January 2001 and February 2002 issues of Avoiding Lawsuits.
In this issue, we focus on the evolving definition of “sexual harassment.” In some cases, the news for employers is good: that which you thought was sexual harassment may not be. But in other cases, the news for employers is not so good, and the failure to stay up to date can be devastating. Here’s an important example of how these changes in the law are playing out in the real world of employment practices and liabilities.
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
