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New York Sexual Harassment FAQ: Employer Liability and Prevention

Can I be held liable as an employer if one of my employees who is a supervisor sexually harasses another employee?

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for above-the-bar-logo-no12.jpgYes. You can be held vicariously liable for sexual harassment committed by your supervisors. This liability also extends to you if your supervisor or manager commits harassment based on race, color, sex, religion, national activity, age, protected activity, and disability. The two basic reasons behind this are that employers are responsible for the acts of their employees and employers should be encouraged to prevent workplace harassment. If the harassment leads to a tangible employment action, i.e., the employee gets fired, demoted, or is denied a raise or promotion, you will be held liable.

However, if no tangible employment action is taken, you can avoid liability if you exercised reasonable care to prevent and correct your supervisor’s harassing behavior, and your employee unreasonably failed to complain or follow office procedures. For example, if your employee was subjected to sexual harassment which resulted in a hostile work environment, but your employee unreasonably failed to complain to you or someone designated in your policy and you exercised reasonable care to prevent and quickly correct the harassment, then you will not be liable. The key to your avoiding liability is for you to take reasonable care to prevent harassment. If you don’t take reasonable care, you will be liable even if your employee unreasonable failed to complain and you took corrective action after you found out about the harassment.

The recent sexual harassment case against pharmaceutical giant Novartis has shown that that if your company doesn’t create and implement policies and procedures to prevent and deal with workplace harassment, a judge will force it upon you. Clearly, to show that you took reasonable care to prevent sexual harassment at your workplace, you must have an anti-harassment policy and complaint procedure set up in your office. This policy cannot be sitting quietly on a shelf. You must distribute it to all your employees and management and encourage them to read it and report any harassment. It is also important to hand this out to any new employees as well as redistribute this policy periodically. Your policy should explain what sexual harassment is and that it will not be tolerated. The policy should also set forth a detailed procedure on how employees can make complaints and to whom. You should ensure that if an employee complains, it will be kept confidential to the extent possible. Your policy should encourage employees to report sexual harassment without fear of retaliation. For example, every employee should have someone other than his or her own supervisor to complain about the harassment.

When an employee files a complaint or verbally reports sexual harassment, it should be promptly and thoroughly investigated. Moreover, once you know about the harassment, you have a responsibility to take immediate action to quickly stop it and make sure it does not happen again. A written record should be kept of everything complained of and the entire investigation. Any employee who is found to have been harassing another employee should be disciplined.

In addition to the Federal Law prohibiting sexual harassment at the workplace, which is enforced by the EEOC, the New York City Human Rights Law also applies to any employer in New York City who employs four or more employees. This provides more protection to employees than the Federal Law which only applies to companies with at least 15 employees.

Contrary to Federal law, in New York, a supervisor may be held individually liable for sexual harassment under certain circumstances. In the recent case Zakrzewska v. The New School, the New York Court of Appeals held that the New York City Administrative Code, sec. 8-107(e), does not allow an employer to assert the above described affirmative defense if the harasser “exercised managerial or supervisory authority” or knew about the prohibited conduct and failed to take “immediate and appropriate corrective action.” This is all the more reason to make sure you take reasonable precautions to establish, implement, and enforce a policy and complaint mechanism for workplace harassment.

If you don’t have an anti-harassment policy, the Employment Attorneys at Villanueva & Sanchala can help you develop an anti-harassment policy, complaint procedures, as well as provide management and employee training seminars to prevent and handle sexual harassment at your workplace. E-mail or call us now at (800) 893-9645 for a free initial telephone consultation.

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