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If you think the Harvey Weinstein scandal won’t affect your company, think again!

Initially, it seemed like the Harvey Weinstein scandal would be limited to the glitz and glamour of Hollywood as one star after another came forward with allegations of sexual harassment against Harvey Weinstein which spanned almost a 30-year period. However, since the Harvey Weinstein scandal broke in October 2017, women all over the world have started coming forward also and have been sharing their own personal experiences with sexual harassment and assault in the #MeToo social media campaign as part of what has been referred to as the “Weinstein Effect.” The effects of #MeToo and the Weinstein scandal are continuing to unfold in what some believe may be a larger social revolution. In fact, on December 6, 2017, Time magazine named the “silence breakers” participating in the #MeToo movement as the “Person of the Year 2017.” As we move into 2018, employers should be aware that sexual and other forms of harassment in the workplace will face increased scrutiny in the year ahead.

How can a company protect itself?

Employers can preemptively address sexual and other forms of harassment in the workplace with a well drafted Employee Handbook that prohibits sexual and other forms of harassment in the workplace. Proactively addressing harassment in a workplace policy means employers can resolve employee complaints early, assert stronger defenses in lawsuits and mitigate damages if lawsuits cannot be avoided. In the case of hostile work environment (HWE) harassment claims, a well drafted anti-harassment policy means an employer can avail themselves of what is known as the “Faragher-Ellerth defense.”

What is the Faragher-Ellerth defense?

Employers are generally liable for HWE harassment by a supervisor. However, if an employer can avail themselves of the Faragher-Ellerth defense (named after a leading case), it will be able to successfully defend itself against a claim for HWE harassment by a supervisor. To use this defense and avoid liability, the employer must establish each of the following elements: (1) no tangible employment action was taken against the party claiming harassment, (2) the employer exercised reasonable care to prevent and promptly correct harassing behavior and (3) the plaintiff unreasonably failed to take advantage of the opportunity provided by the employer to prevent and to correct the harassment.  

How does an Employee Handbook fit in?

The employer can help satisfy the second element of the Faragher-Ellerth defense by producing evidence that the company has an Employee Handbook with a well drafted anti-harassment policy. The employer must also show that the Employee Handbook was widely disseminated throughout the workplace and all employees, including the plaintiff, received a copy.  

If you haven’t reviewed your Employee Handbook in a while, now is a good time to do so. The EEOC’s Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors has suggestions for anti-harassment policies and the employment attorneys at Hutchison PLLC are also available to help review your existing policy or prepare a basic Employee Handbook for your company. 

Author: Holly E. R. Hammer