To the Editor:

The Equal Employment Opportunity Commission (EEOC) has issued guidelines that further explain employer liability for harassment, the subject of our recent article in FPM [“Preventing and Responding to Sexual Harassment,” October 1999].

The guidelines state that employer liability will be determined by whether the harassment results in a tangible employment action, such as firing, hiring, failure to promote or demote, change in work assignment, change in compensation or benefits, etc.

If harassment results in a tangible employment action, the employer is automatically liable for a supervisor's actions. If harassment does not result in a tangible employment action, the employer must present affirmative defenses to avoid liability for the supervisor's actions. The employer must prove that it exercised reasonable care to prevent and correct promptly any harassment and that the employee unreasonably failed to take advantage of the employer's preventive or corrective opportunities or to otherwise avoid harm. The EEOC noted that there is no affirmative defense when the harasser is the president or owner of an organization.

The Supreme Court rulings mentioned in the article and the EEOC guidelines make it clear that the best way to protect yourself and your practice is to institute a harassment approach that includes the following:

• A clear, detailed written policy that outlines your position against all types of harassment;

• Periodic management and employee training and programs that communicate the practice's position on this issue;

• A complaint procedure that encourages employees to come forward with any harassment complaints and assures confidentiality, and;

• An investigation strategy that assures immediate and appropriate preventive and corrective action and protects the privacy interests of the alleged victim and the accused offender.

Editor's note:

The case citations included in the article were to lower-court rulings rather than the Supreme Court rulings referred to in the article. The correct citations are Faragher v City of Boca Raton, 118 S. Ct. 2275 (1998), and Burlington Industries v Ellerth, 118 S. Ct. 2257 (1998).