Late last week, news broke that a high-ranking Wisconsin state politician was accused of sexually harassing at least two women at an out-of-state fundraiser. The early reports have not clarified whether either woman worked for the representative, but at least one victim appears to not be employed by his office. Interestingly, commentators have suggested that the politician at issue was notorious for inappropriate conduct and those around him were just waiting for such a story to break.
For private sector employers, this news is a teachable moment in two respects. First, do not assume that supervisors at any level “know better” than to engage in sexually inappropriate conduct. Employers can and will be held liable for the sexual misconduct of supervisors aimed at the employees they oversee. The individual with an MBA or PhD may not be any better at identifying his or her own inappropriate sexual conduct than the employee lacking those degrees.
An employer may be able to reduce liability if it has a comprehensive plan to report and respond to allegations of harassment. Such a plan should include regular training on the legal ins and outs of sexual harassment and other forms of unlawful discrimination (see here and here). Signing an acknowledgement form that an employee has received the employer’s equal employment opportunity and anti-harassment policies is unlikely to be enough. The attorneys of Walcheske & Luzi are available to provide such training at a cost-conscious, flat rate. A small investment in this training by an employer can result in big litigation savings down the road.
Second, employers with employees who interact with outside parties need to respond if a complaint of third-party conduct is brought to the employer. This topic is often raised during the holidays when company parties can mix alcohol with clients and other guests. The EEOC issued guidance on harassment by third-party members of the public that is relevant to this issue. There, the EEOC noted that the chances for liability are reduced where “reasonable corrective action” was taken in response to allegations of harassment. Employers should not dismiss responding to allegations of sexual harassment if the misconduct comes from those who aren’t employed by the company. An employer’s response to protect its employees may ultimately determine its liability.