What’s a Presidential campaign without sex? Or at least allegations of sexual harassment?

In this regard, Politico reported that Herman Cain, a Republican presidential hopeful, engaged in conduct that resulted in at least two out-of-court settlements with women who complained they were subjected to inappropriate conduct by Mr. Cain. These settlements occurred while Mr. Cain was heading up the National Restaurant Association.

When Can an Employer Be Liable for Sexual Harassment by a Manager or Supervisor? 

Setting aside politics, Mr. Cain’s reported indiscretions are a good reminder for when an employer may be liable for the sexual harassment of a supervisor. Generally, such liability occurs in two situations: 

First, an employer is liable for quid pro quo harassment by its supervisors. Quid pro quo harassment exists when a supervisor makes a subordinate’s job security or benefits conditioned on acceptance of the supervisor’s sexual overtures and then penalizes the subordinate for refusing them.     

Second, an employer may also be liable for a supervisor’s conduct that creates a sexually hostile work environment for a subordinate. This sort of sexual harassment, however, provides an employer with an affirmative defense and thereby avoid liability if the employer proves the following: 

1. The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 
2. The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. 

See the landmark U.S. Supreme Court decisions Burlington Indus v Ellerth, 524 US 742, 790 (1998) and Faragher v City of Boca Raton, 524 US 775 (1998). 

What Steps Should Employers Take to Limit Their Exposure to Sexual Harassment Liability?

The first line of defense in reducing an employer’s exposure to sexual harassment liability is having in place a well-publicized and effective sexual harassment policy. This policy should be developed with experienced legal counsel and should include the following topics: 

• Statement that the employer will not tolerate sexual harassment;
• A definition of prohibited conduct;
• A direction that employees who feel they have been sexually harassed are to make a complaint to specific individuals. The policy, however, should also include several alternative avenues for making a sexual harassment complaints;
• The employer’s commitment to investigating sexual harassment complaints;
• The employer’s commitment to maintaining confidentiality of the reporting employee to the extent possible;
• A statement that that sexual harassers will be subject to disciplinary action up to and including discharge; and
• The employer’s commitment that there will be no retaliation for making a complaint or assisting in a sexual harassment investigation.

The second line of defense is educating managers at all levels so they have a solid understanding of:

• What constitutes unlawful discrimination, including sexual harassment;
• What decisions should be cleared with the human resources department or higher-level management; and 
• What complaints, including “rumors” that should be reported for appropriate action. This is especially important where the employer’s prompt investigation and remediation may help to avoid or substantially limit the employer’s exposure to discrimination claims.

For questions on preventing sexual harassment or for more information on employer liability for sexual harassment, please contact Jason Shinn.