Sexual Harassment: Some Preventive Measures

by Edward Piantek

What can employers do to reduce the occurrence of potentially costly third-party liability lawsuits? Plenty. Keep in mind that courts want to see whether an employer takes 'immediate and appropriate corrective action' to remedy the situation. Courts also look for strong evidence that the employer has taken sexual harassment and discrimination incidents seriously and has taken steps to prevent them from happening. Here are some preventive measures:

EMPLOYEES WHO SEXUALLY HARASS OR DISCRIMINATE AGAINST NON-EMPLOYEES

• Educate employees about sexual harassment and discrimination issues. Explain appropriate and inappropriate behavior. Many companies already train employees on sexual harassment and discrimination as it relates to fellow employees. They should continue this education with a focus on nonemployees.
• Communicate the company's sexual harassment and discrimination policy internally, and make sure employees understand it. Explain clearly that it applies to employees and nonemployees.
• Establish a procedure for handling complaints from employees and nonemployees.
• When you receive complaints from nonemployees, investigate them immediately and thoroughly.
• Implement adequate remedies to stop the sexual harassment or discrimination.

NONEMPLOYEES WHO SEXUALLY HARASS OR DISCRIMINATE AGAINST EMPLOYEES:

• Educate employees on sexual harassment and discrimination issues, and explain how to discourage the behavior.
• Explain the company's sexual harassment and discrimination policy to outsiders. Post the policy where visitors can see it easily. Include a statement about your policy on company letterhead, billing statements, and other materials.
• Establish a procedure for handling complaints from employees about the behavior of nonemployees.
• When employees submit complaints about nonemployee sexual harassment or discrimination, investigate them immediately and thoroughly.
• Don't punish employees who lodge complaints about sexual harassment or discrimination from nonemployees. This is considered retaliation, and it's illegal. Discharging an employee is an obvious retaliation. Less obvious are actions such as removing an employee from a project or moving an employee to a less-challenging job. The intention may be to protect the employee from the source of the complaint, but the employee might perceive it as punishment for making the complaint. Employers must make it clear that they will support the employee and that they won't expect the employee to learn to cope with sexual harassment or discrimination alone.
• Implement adequate remedies to stop any sexual harassment or discrimination by nonemployees. For example, request that an offending salesperson be removed from your company's account; send a warning letter to an offending vendor representative with a copy to the vendor company's president, or simply stop doing business with the vendor.
• Include indemnity provisions in contracts to shift the liability for third-party sexual harassment or discrimination to the vendor or customer.