As an employer, ensuring that your workplace is free of harassment isn’t just the right thing to do; it has many practical benefits, including improved employee morale and productivity. But even if you think your anti-harassment stance goes without saying, adopting and following a written policy aimed at preventing and, if necessary, redressing illegal harassment can serve as a shield against costly legal fees and damages if it does occur.
Kentucky law prohibits discrimination or harassment on several bases, including race, color, religion, national origin, sex, age, or disability. Lately, however, concerns about sexual harassment have dominated both the news cycle and employment lawyers’ telephones.
One of the first questions we pose when an employer asks a question about potential sexual harassment is, “What does your anti-harassment policy say?” And we hope the response is not, “We don’t have one.” That’s not because we think the lack of a policy means the company believes harassment is acceptable—it’s because the existence of a policy can provide a viable defense for employers in the event a lawsuit is filed.
In 1998, the United States Supreme Court issued two opinions whose rulings formed what is commonly called the “Faragher/Ellerth defense.” Under that law, which Kentucky courts follow, in certain circumstances, an employer can defend against a harassment claim by showing that (1) it exercised reasonable care to prevent and promptly correct the allegedly harassing behavior; and (2) the claimant employee failed unreasonably to take advantage of preventive or corrective opportunities provided by the employer or otherwise to avoid harm.
Although the absence of an anti-harassment policy does not necessarily prevent an employer from taking advantage of the Faragher/Ellerth defense, adopting a well-written policy and routinely enforcing it significantly lessens the burden on the employer to establish its applicability. A case decided last year by the Sixth Circuit Court of Appeals, Equal Employment Opportunity Commission v. AutoZone, Inc., is a prime example. In that case, a store manager was allegedly making sexually charged comments and touching an employee in a sexual manner. The employee eventually reported the conduct to the district manager, who relayed the information to the regional human resources manager, who conducted an investigation. Ultimately, in the face of conflicting accounts, the store manager was transferred to a different store.
The Sixth Circuit found that Faragher/Ellerth shielded AutoZone from liability because it adopted an anti-harassment policy that both defined sexual harassment and informed employees how to report it, it required employees to read the policy and sign a form acknowledging they had done so, and the allegedly harassed employee had waited several months to take advantage of the reporting procedure.
Even the best intentions and efforts to promote a harassment-free workplace don’t immunize employers from accusations. And even the best policy won’t matter if it’s not enforced. So to best protect yourself in the event harassment accusations arise, yes, #YOUTOO should implement a thorough and consistently applied written anti-harassment policy. Our attorneys can help.
(1) Ky. Rev. Stat. § 344.040; accord 42 U.S.C. § 2000e-2(a)(1).
(2) Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
(3) See American General Life & Accident Insurance Co. v. Hall, 74 S.W.3d 688 (Ky. 2002).
(4) Case No. 16-6387, 692 Fed. App’x 280 (June 9, 2017).