It is well established now beneath federal Title VII law that an employer is liable for actionable sexual harassment triggered by a supervisor with “instant (or successively greater) authority more than the employee.” Nonetheless, in situations exactly where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may possibly raise to stay clear of Title VII liability and damages.
Beneath such affirmative defense whether an employer has an anti-harassment policy is relevant evidence. Also important is effective supervisory training and coaching of personnel on the harassment policy and complaint process.
Education and educational programs for all employees take on an even greater degree of value under Hawaii state law, HRS Chapter 378. State law at present is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors.
When the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a current Illinois Supreme Court choice upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even even though the supervisor did not even have direct supervisory authority more than the Complainant.
The April 16, 2009 Illinois choice will definitely be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation. Accordingly, it is essential that Hawaii employers recognize the significance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.
I. The Significance of Obtaining an Productive Harassment Policy
A. The Faragher/Ellerth Defense
Getting an powerful sexual harassment policy and instruction plan will considerably increase the likelihood of avoiding liability below the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court.
Exactly where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may prevent liability by displaying that: (1) the employer exercised reasonable care to avert and promptly right any harassing behavior and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective possibilities offered by the employer to stay clear of harm. “A tangible employment action constitutes a important modify in employment status such as hiring, firing, failing to promote, reassignment with considerably diverse responsibilities or a decision causing a substantial change in advantages.”
The significance of the affirmative defense was considerably improved by a U.S. Supreme Court’s choice in which the Court held that the defense is out there in constructive discharge situations unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a reduce in pay.
A zero-tolerance harassment policy ought to fit the atmosphere and personnel:
Even though proof that an employer had promulgated an antiharassment policy with complaint procedure is not important in just about every instance as a matter of law, the need to have for a stated policy suitable to the employment situations may well appropriately be addressed in any case when litigating the very first element of the defense. The policy really should be written in plain English, so that all workers regardless of their educational level or background can recognize it … [a] policy ought to contain a clear and precise definition of unlawful harassment so that staff know what kind of conduct is prohibited by the policy and will be able to recognize that conduct must it occur.
Accordingly, if the alleged harasser has supervisory authority more than the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is capable to effectively raise the affirmative defense.
B. Recommendations On Drafting a Zero-Tolerance Policy and Complaint Procedure.
(1) Write in uncomplicated English.
(two) Consist of a clear definition and examples of prohibited conduct and make it broad sufficient to prohibit all types of harassment.
(three) State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,
(4) Designate at least two specially trained managers who will be accountable for investigating harassment complaints for the business.
(5) Identify the complaint procedure that will be employed to investigate complaints of harassment by supervisory personnel, co-workers and outsiders.
(6) Deliver a “clear chain of communication,” permitting staff to step outside of the regular hierarchy in the occasion the supervisor is the harasser and take into consideration getting a toll-cost-free number employees can get in touch with.
(7) State that workers who report prohibited conduct will be protected from retaliation.
(8) State that the employer will promptly investigate the matter in an objective and discrete manner.
(9) Deliver the form of disciplinary action to which offenders can anticipate to be subjected.
(10) State that the employer will also take remedial action.
(11) Train your management personnel and line staff on the policy and procedure.
(12) Have every employee sign an acknowledgment kind that they have received a copy of the policy and process, and that they have received instruction on the harassment policy.
C. The Faragher/Ellerth Defense and Hawaii Law
Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against people in practically all elements of employment. Having said that, it remains an open question whether an employer, below Hawaii state law, can assert the Faragher/Ellerth affirmative defense.
At present, below regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether or not tangible action is taken: