#METOO at Work

02 February 2018
#METOO at Work

1 in 3 women ages 18 to 34 have been sexually harassed at work.  71% of those women said they did not report it.
Source: Cosmopolitan survey of 2,235 full and part-time female employees, 2015

Within 24 hours from the time Alyssa Milano suggested on Twitter that people use #metoo to bring to light the prevalence of sexual harassment, the # was posted over 12 million times on Facebook.  This movement has empowered and emboldened people to speak up about being victims of sexual abuse in many forms and in different environments.  I applaud the movement and the strength it has given to the survivors.  Time’s Up.

In an office setting and from the perspective of an employer, however, this may lead unintended liability exposure if the victims of sexual harassment (i.e. the employees) are finally speaking up – and with the statistics I mention above, this is something that should not be taken lightly.

Whereas, before, someone may not complain for fear of repercussions on one’s career (as happened with me), this #metoo movement is giving victims of sexual harassment strength to believe that the serious repercussions will fall on the perpetrator, not on them.

The Supreme Court case of Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), established that an employer is vicariously liable for the acts of its employees “but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of a plaintiff victim.” See Id. and Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998).

In determining whether or not an employer is responsible for the acts of its employees, the Supreme Court looked to see if:

  • the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and
  • the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Basically, as more recent jurisprudence indicates, this means that the employer must take certain affirmative steps to prevent and correct harassment, including having a solid harassment policy and procedures.

But, having a great policy that no one reads is not enough.  A company should provide periodic training to its employees to ensure that they know exactly what to do in the event they do face harassment of any sort.  If the employees comply with the procedures, then the company has the ability to stop the harassment by taking necessary measures and liability is minimized. If the company has the policies and has provided the training and the employee fails to avail itself of the steps provided in the same, then, the employee’s unreasonable failure to take advantage of those procedures will help to minimize the company’s liability exposure. Training is therefore a win-win.

I will only briefly note that having a solid policy and providing training will not shield employer companies from liability where the harasser is the “Alter Ego” of the employer.

Who qualifies as “Alter Ego’s”?

  • president
  • owner
  • partner
  • corporate officer

Also important to note is that a company will not be shielded from liability if there is “[e]vidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed.”  See Vance v. Ball State University, 133 S. Ct. 2434 (2013).

At Begum Peláez-Prada, PLLC we have been getting many requests from our clients to review their policies and provide training.  We would be happy to provide any further information. Feel free to reach out to me at: sasha@bp-plaw.com.