KemLaw

Last week’s column defined sexual harassment. This week, we take a look at the legal ramifications for employers of allowing sexual harassment in the workplace.

Let’s look first at the legal liabilities for employees who are found to have sexually harassed another employee:          

1. In such cases, a supervisor and/or the individual harasser is subject to:
   • “Aiding and abetting” liability as defined by the Connecticut Fair Employment Practices Act may apply to co-workers, other non-supervisors, and even third parties who engage in or encourage sexual harassment.
   • Civil “tort” suits brought by the victim (e.g., intentional or negligent infliction of emotional distress; defamation; negligence in hiring, supervision and/or retention; invasion of privacy; false imprisonment).
   • Criminal prosecution (e.g., sexual assault, stalking, computer crimes).
   • Discipline or discharge from employment.

Does an employer have any exposure for acts of sexual harassment by employees?

Yes. Employers are subject to the following:

1. Strict liability for the actions of supervisors with immediate or successively higher authority over the victim.
   • This standard applies to both “quid pro quo” and hostile work environment harassment.
   • The key question is whether the supervisor took tangible employment action against the victim.
   • Preventive precautions will not automatically exonerate the employer but often help to lower the compensatory and punitive damage awards.
   • Potential affirmative defense may be available to an employer only if the victim did not suffer tangible employment action and employer shows that it took reasonable steps to prevent and correct sexual harassment, such as training and policy, and that the victim unreasonably failed to take advantage of employer’s protections.
2. Liability for conduct between co-workers. Employers are responsible where they (or its agents or supervisory employees) knew or should have known of the conduct unless it shows that it took immediate and appropriate corrective action. The key questions here are:
   • Did the employer “know or have reason to know” of the alleged harassment?
   • Ignorance is not a defense if reasonable inquiry would have put the employer on notice.
   • Did the employer care, by taking prompt and appropriate corrective action?
   • Did the employer have a policy prohibiting sexual harassment which was effectively communicated to all employees?
3. Liability for third party behavior (e.g., contractors, vendors, customers):
   • There is liability whenever an employer knows or should have known of the poor conduct of a third party and fails to take immediate and appropriate corrective action.
   • Final liability may turn on how much control the employer exercises over the third party.
4. Liability for retaliation against victims who “blow the whistle” or assist in anti-discrimination agency proceedings:
   • By the employer
   • By the harasser
5. Lawsuits by the alleged harasser.

What can a sexually harassed employee expect as remedies for any harm they have suffered?

1. The Connecticut Fair Employment Practices Act comes into play here allowing for the following:
   • Reinstatement, back pay, front pay, lost fringe benefits (including pension rights); unlimited compensatory and punitive damages; attorneys’ fees.
   • Entitlement to a jury trial.
2. Title VII and the Civil Rights Act of 1991 also come into play as remedies…
   • Same remedies as available under state law plus punitive damages for private employers and attorney’s fees.
   • Compensatory and punitive damage caps against private (not public) employers ranging from $50,000 for employers with from 15 to 100 employees to $300,000 for employers with 501 or more employees.
   • Entitlement to a jury trial.

Being an employer is not an easy task, but when it comes to matters of sexual harassment, there are preventative measures that can be taken that offer a degree of legal protection while improving the chances that your employees will enjoy a positive work experience.

Preventative Measures

1. Make sure you have a clear and visible anti-harassment policy and complaint procedure.
   • Adopt and publish grievance procedures providing for prompt and equitable resolution of all sex discrimination complaints, including complaints of sexual harassment
2. A sexual harassment grievance procedure should:
   • Bypass a supervisor or other staff member who may be the harasser
   • Provide the victim access to someone of same-sex
   • Provide access to a person trained in human resources and/or counseling
   • Assure confidentiality of complaints and records to the fullest extent possible
   • Ensure no retaliation
3. Take every complaint seriously.
   • Always conduct a prompt, full and fair investigation.
   • Always take prompt corrective action as may be necessary.
4. The ultimate goal is to create a work environment in which all persons understand, through the policy statements and the actions taken in support of that policy, that sexual harassment will not be tolerated.

If you are an employer in Connecticut and need guidance on the topic of sexual harassment, contact the attorneys at Kainen, Escalera & McHale. We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys has over 20 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please contact us if we can help you.

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