Most employers are aware of the potential liability for discrimination and harassment in the workplace. A recent Illinois case illustrates the critical nature of the issue that all employers face.  On April 16, 2009, the Illinois Supreme Court issued its decision in Sangamon County Sheriff’s Department v. Illinois Human Rights Commission, holding that an Illinois employer is strictly liable for sexual harassment committed by any supervisory or management employee, even where the harasser had no supervisory authority over the complainant and had no authority to affect the terms and conditions of the complainant’s employment.

The court noted that it was not unfair to hold employers strictly responsible for sexual harassment by supervisory employees, based on the fact that supervisors are the “public face” of the employer and are in the best position to train supervisors and make them aware of the law prohibiting sexual harassment.

In the past, in an effort to decrease employer liability, we have advised employers to provide anti-harassment training for all of their supervisors and employees. This is now more important than ever. Supervisors have always had the power to subject an employer to strict liability for harassment of their subordinates. Sangamon County makes it clear that supervisors in Illinois also have the same power to bind their employer as they interact with employees supervised by others.

What should an employer do? Although various states are finding new theories to impose liability on employers, following the Equal Employment Opportunity Commission (EEOC) guidance (the Federal law) is still the best protection for all employers regardless of the state where the employer conducts business. The EEOC has made it clear that employers can and should take certain steps to protect themselves against harassment claims. Even though the requirements are easy to follow, many employers are still not following the EEOC guidance and are not providing training for the workforce that would help defend and defeat a claim of harassment.

Create a Policy. Every employer should create a company policy that prohibits harassment. An employer should provide every employee with a copy of the company policy and complaint procedure and redistribute it periodically. The company policy and complaint procedure should be written in a way that will be understood by all employees in the employer’s workforce. Other measures to ensure effective dissemination of the policy and complaint procedure include posting it in central locations and incorporating it into employee handbooks. If feasible, the employer should provide training to all employees to ensure that they understand their rights and responsibilities.

According to the EEOC, an anti-harassment policy and complaint procedure should contain, at a minimum, the following elements:

A clear explanation of prohibited conduct;

Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;

A clearly described complaint process that provides accessible avenues of complaint;

Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;

A complaint process that provides a prompt, thorough, and impartial investigation; and

Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Update: Protecting Your Organization Against Harassment Claims (continued)

An employer’s policy should make clear that it will not tolerate harassment based on sex (with or without sexual conduct), race, color, religion, national origin, age, disability, and protected activity (i.e. opposition to prohibited discrimination or participation in the statutory complaint process). This prohibition should cover harassment by anyone in the workplace—supervisors, co-workers, and non-employees.

The policy should encourage employees to report harassment before it becomes severe or pervasive. While isolated incidents of harassment generally do not violate federal law, a pattern of such incidents may be unlawful. Therefore, to discharge its duty of preventive care, the employer must make clear to employees that it will stop harassment before it rises to the level of a violation of federal law.

An employer should make clear that it will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. An anti-harassment policy and complaint procedure will not be effective without such an assurance.

Management should undertake whatever measures are necessary to ensure that retaliation does not occur. For example, when management investigates a complaint of harassment, the official who interviews the parties and witnesses should remind these individuals about the prohibition against retaliation. Management also should scrutinize employment decisions affecting the complainant and witnesses during and after the investigation to ensure that such decisions are not based on retaliatory motives.

Effective Complaint Process. An employer’s harassment complaint procedure should be designed to encourage victims to come forward. To that end, it should clearly explain the process and ensure that there are no unreasonable obstacles to complaints. A complaint procedure should not be rigid, since that could defeat the goal of preventing and correcting harassment. When an employee complains to management about alleged harassment, the employer is obligated to investigate the allegation regardless of whether it conforms to a particular format or is made in writing.

The complaint procedure should provide accessible points of contact for the initial complaint. A complaint process is not effective if employees are always required to complain first to their supervisors about alleged harassment, since the supervisor may be a harasser. Moreover, reasonable care in preventing and correcting harassment requires an employer to instruct all supervisors to report complaints of harassment to appropriate officials.

It is advisable for an employer to designate at least one official outside an employee’s chain of command to take complaints of harassment. For example, if the employer has an office of human resources, one or more officials in that office could be authorized to take complaints. Allowing an employee to bypass his or her chain of command provides additional assurance that the complaint will be handled in an impartial manner, since an employee who reports harassment by his or her supervisor may feel that officials within the chain of command will more readily believe the supervisor’s version of events.

Effective Investigative Process. An employer should set up a mechanism for a prompt, thorough, and impartial investigation into alleged harassment. As soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary. For example, if the alleged harasser does not deny the accusation, there would be no need to interview witnesses, and the employer could immediately determine appropriate corrective action. If a fact-finding investigation is necessary, it should be launched immediately.

The employer should ensure that the individual who conducts the investigation will objectively gather and consider the relevant facts. The alleged harasser should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation. Whoever conducts the investigation should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility. It is more important than ever for employers to establish, publicize and enforce anti-harassment policies and complaint procedures.

Provide Training for all Employees and Supervisors. Training for all employees, not just managers or supervisors may help prevent problems from occurring. Further, courts look at employer training when deciding whether an employer has acted responsibly in preventing harassment and discrimination in the workplace. In addition, employers should include information about the company anti-harassment policy and procedures in the orientation information provided for all new employees.

Human Resource Services, Inc. (HRS) is a subsidiary of PAS that offers assistance in creating policies, establishing complaint procedures, handling complaints and providing harassment prevention training. Call us at 800.356.0845.

This article is not intended to be construed as legal advice, but is provided as an overview of good business practices.