Federal and New York State Law prohibits employment discrimination on the basis of sex.

Federal Title VII of the Civil Rights Act only applies to employers with 15 or more employees, and the New York State Human Rights Law discrimination section applies to employers with four or more employees.

Sexual Harassment is defined as the unwelcome overtures of a sexual nature which alter the terms and conditions of employment offered to women (or in some cases to men) in a way in which the terms and conditions of other employees are not effected. There are two types of sexual harassment: Quid Pro Quo sexual harassment and hostile work environment.

Quid Pro Quo sexual harassment involves the actual demand for sexual favors as a term or condition of employment, and is only applicable in the supervisor/ employee scenario. A hostile work environment claim arises when sexually charged unwanted conduct and verbalizations occur in the workplace. The type of conduct must be severe or pervasive. Employees who are successful in bringing a claim for sexual harassment can receive a wide range of remedies including reinstatement, back pay, front pay, compensatory damages, and punitive damages.

Claims of sexual harassment can be very costly to an employer. So what can employers do to protect themselves from these sorts of claims? The Supreme Court has handed down two decisions which give some directions to employers: Burlington Industries v. Ellerth, 524 U.S. 742 (1988) and Faragher v. Boca Raton, 524 U.S. 775 (1998). In those cases, the Court found that if the employer has a handbook which has an anti-harassment policy and has a reasonable and effective method for the employee to complain and seek redress for inappropriate conduct then if the employee fails to utilize such a known and effective policy and procedure, the employer will prevail because it never got a chance to solve the problem before the situation got so bad as to be declared a matter worthy of federal litigation.

The question remains what is an effective sexual harassment policy. All employers should have the following:

1. Employee handbooks stating that the Company will not tolerate sexual harassment;
2. Complaint procedures setting forth how to report harassment;
3. Investigative procedures in place for supervisors to follow upon receiving a complaint;
4. Training.

A recent New Jersey Appellate Division case, Cerdiera v. Martindale-Hubbell, 402 N.J. Super. 486 (App. Div. Sept. 2008) held that an employer could be liable where the employer has failed to have in place effective and wellpublicized sexual harassment policies that provide employees with reasonable avenues for voicing sexual harassment complaints. Although there is not yet a case in New York, New Jersey has been a bellwether state in indicating how other states’ case law will change in the employment realm.

Beginning in 2009, our firm will offer Harassment Training for Managers/Supervisors in order to assist our business clients to create and maintain an effective anti-harassment policy. Contact us to set up such training for your employees.

Comments Off

No Comments

No comments yet.

Sorry, the comment form is closed at this time.