A. THE PROBLEM: SEXUAL HARASSMENT
Since the 1991 showdown between Clarence Thomas and Anita Hill, claims of sexual harassment have made headlines. Whether it is the claims lodged against New York Congressman Anthony Weiner, Presidential candidate Herman Cain, or those confronted by David Letterman a number of years ago, sexual harassment is often in the news.
The headlines, however, are not limited to mere claims of sexual harassment. The verdicts in these cases – often multi-million dollar awards – also make news. In June 2011, for example, a federal court jury in East St. Louis, Illinois awarded over $95 million to a former employee of Aaron’s, Inc., whose manager made suggestive comments, touched and sexually assaulted her. Closer to home, a New York jury awarded $15 million to a female nurse who endured years of unwanted sex talk, propositions and groping by a doctor. The jury found both Flushing Hospital and the doctor liable.
Large verdicts are hardly the end of it. The problem of sexual harassment is not limited to the time and money spent on litigation. The problem adversely affects the public’s perception of the employer, lowers morale and productivity, increases turnover and absenteeism, and destroys careers and families.
Not surprisingly, high-profile lawsuits and enormous jury awards have resulted in an explosion of sexual harassment claims. Since 1991, the number of sexual harassment claims filed with the Equal Opportunity Commission has more than doubled.
Against this backdrop, courts have scrambled to develop standards for evaluating sexual harassment claims. Fortunately, as this dynamic area of law has evolved, vigilant employers can now take proactive measures to reduce their exposure.
B. THE SOLUTION: EMPLOYEE TRAINING
The best way to tackle the sexual harassment problem is to stop it in its tracks through an effective prevention program. Training is the key component of such a program. Training will help employees recognize what is and what is not sexual harassment. Training will also help teach employees to avoid engaging in sexual harassment, and to take the steps necessary to minimize liability from sexual harassment claims.
(i) Reducing Costs
A sexual harassment claim is like any other insurable event – the best way to control the costs associated with it is to eliminate such claims or reduce the likelihood that they will be filed. Training is the best way to achieve that objective.
When your employees are trained, you are equipped to deal with, and often resolve, an incident of alleged sexual harassment before a lawsuit is filed. For example, by informing employees of your anti-harassment policy and internal complaint and investigative procedures, you will gain predictability and control over such claims. By educating supervisors on effective ways to identify and respond to harassment that they encounter, you improve your ability to monitor the workplace and stop offensive conduct as it occurs. Because these benefits of training will eliminate or reduce the number of sexual harassment claims you face, cost reductions in the form of reduced litigation expenses, lower turnover and less absenteeism can be achieved. You may also experience improved productivity and morale.
(ii) Limiting Liability
While providing you with the tools and defenses that will help you to expeditiously resolve sexual harassment claims, training is also designed to ensure that you limit your liability in the event of a lawsuit. In the leading sexual harassment case in New Jersey, our Supreme Court emphasized that due to the prevalence of sexual harassment,
[A] plaintiff may show that an employer was negligent by its failure to have in place well-publicized and enforced anti-harassment policies, effective formal and informal complaint structures, training, and/or monitoring mechanisms…[G]iven the foreseeability that sexual harassment may occur, the absence of effective preventative mechanisms will present strong evidence of an employer’s negligence.
The New Jersey Supreme Court also warned that employers are liable for compensatory damages (i.e., pain and suffering) when they are negligent in failing to take effective steps to end sexual harassment. In addition, when management participates in or is willfully indifferent to the offensive conduct, the employer can be liable for punitive damages. Most importantly, the United States Supreme Court has essentially mandated that employers establish, communicate and enforce sexual harassment policies.
By training your employees and following through with a strong anti-harassment policy and internal grievance procedure for harassment complaints, you comply with current legal requirements and obtain valuable defenses against compensatory and punitive damages. In today’s litigious environment, these are exceedingly potent business and legal reasons for tackling the problem of sexual harassment.
C. OUR PROGRAM
For the last twenty one years, since the Clarence Thomas/Anita Hill hearings and the avalanche of sexual harassment claims which followed, we have provided sexual harassment training to thousands of public and private sector employees and managers. In that capacity, we have achieved a valuable perspective. We have trained all-male fire departments, health care workers, municipal judges, executives and managers of multi-national and publicly traded corporations, restaurant and country club workers, elected officials, garbage collectors, police officers, life guards, librarians, Ph.D Scientists, computer technicians and even lawyers.
This unique background enables us to provide training in a manner that is understood by our audience. Because we have taught in a variety of workplaces, we are equipped to handle the increasingly complex and sensitive issues which confound your employees and challenge your managers.
Most importantly is our extensive experience as employment litigators. We are intimately familiar with, and have successfully utilized, the defenses which every employer needs when a sexual harassment claim is filed. Therefore, we know how the issues raised by employees during the training sessions will actually be argued and interpreted in the context of a lawsuit. These special vantage points allow us to deliver sexual harassment training in a way that helps to avoid the liability land mines which plague this area of law.
Like anything else, training is only worthwhile if it works. Our program works. Several of our clients, who have engaged us after experiencing million dollar verdicts in sexual harassment cases, have enjoyed a decline in incidents of sexual harassment and discrimination. Among other things, they are avoiding the damaging and embarrassing impact of such claims on their operation and public perception.
Our program is dynamic. We integrate lecture, quizzes and open discussion in order to help your employees identify and eliminate sexual harassment.
Each session is conducted by an attorney. To maximize the effect of the training, separate sessions are conducted for supervisory and non-supervisory employees. In the sessions for supervisors, we emphasize corporate and personnel liability and responsibility. Because of this additional focus, supervisory sessions last approximately two hours, while non-supervisory sessions last about one hour. For optimal results, supervisory sessions should be limited to 15-20 participants and non-supervisory sessions should be no more than 30 employees.
To launch the program, we recommend an Executive Session for elected officials and high-level employees. This will highlight your endorsement of the training and send the important message that you are committed to investing the time, effort and resources necessary to eliminate sexual harassment.