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Employment Law Article:

Adopting a Harassment Policy for your Business – Why does it matter?

If you could purchase insurance against risks that your business faces, and there was only a nominal charge for that insurance, you would likely carry the maximum amount that you could find.

Stated another way, it is quite unlikely that you would fail to take advantage of the opportunity to insure your business from risks if there was only a nominal cost to obtain that insurance. Yet many businesses are failing to take advantage of a simple process that would “insure” one of the large risks that they face every day.

This is how the situation arises. If a business has fifteen or more employees, one of the serious risks that it faces is the risk of being sued by an employee for being subjected to harassment in the workplace. This might be sexual harassment, but it could also be harassment based on some other protected factor, such as race, national origin, age, disability, or religion.

The U.S. Supreme Court has held that an employer is vicariously liable for harassment done by supervisors against employees. If, however, the harassment did not result in an adverse employment action such as termination, demotion, or undesirable reassignment, the employer may be able to raise an affirmative defense. This is where the “free insurance” can save the company.

A company can raise an affirmative defense to avoid vicarious liability if it can show two things:

First, that the employer exercised reasonable care to prevent and promptly correct the harassing behavior; and

Second, that the employee unreasonably failed to take advantage of any preventive or corrective opportunities (such as taking advantage of the employer’s published complaint procedure).

Obviously it would be quite difficult to show that the employer took reasonable care to prevent the harassing behavior unless it has adopted, published, and enforced a harassment policy. Furthermore, it would be next to impossible to show that the employee unreasonably failed to take advantage of a complaint procedure if none has been adopted, published, and enforced by the employer.

The difference between adopting, publishing, and enforcing a harassment policy can therefore be the difference between winning and losing a case where a supervisor unlawfully harasses an employee. The cost of this “insurance” is nominal, it has no policy limits, it is easy to obtain and implement, and it can’t be cancelled for non-payment of premiums.

Has your business taken advantage of the protection that can be gained from taking this one strategic step to avoid being held strictly liable for the actions of its supervisors if they harass employees?

Call The Solomon Law Firm, P.C. today and we can help you set up this invaluable protection for your company.

Copyright 2014 By Lee Solomon

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