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Your Employer Must Not Only Have Anti-Harassment Policy But Must Train and Enforce It

Posted by attorney Scott Behren

Well some good news has come for employees recently in a legal decision from a Federal Court in Tennessee. Now it may not be enough for an employer to merely have an anti discrimination policy and invoke it against employees making claims against it. Now, employers probably have to actually follow the policy and train employees on the policy.

For over 10 years, employers have been able to avail themselves of an affirmative defense to sexual harassment allegations by an employee against a supervisor/manager. This defense is known as the Faragher/Ellerth defense, and can be invoked where the employer can demonstrate that: (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); BurlingtonIndus. v. Ellerth, 524 U.S. 742, 764-65 (1998). The vast majority of employers have anti-harassment policies including reporting procedures and protocols for employees to follow, have disseminated those policies and procedures to all employees, and have required employees to acknowledge receipt of the policies. However, the adoption, dissemination and acknowledgment of receipt of the policy by the employee may not be sufficient for employer to invoke the affirmative defense.

Recently, in Bishop v. Woodbury Clinical Laboratory, No. 3:08-cv-1032 (M.D. Tenn. 2010), the court rejected the employer's Faragher/Ellerth affirmative defense despite the fact that the employer had an existing anti-harassment policy that was published and provided to all of its employees. The employee admitted that she had received the policy and had been directed to read it. She claimed, however, that she did not read the policy or understand the reporting requirements. The court noted that there was no evidence offered to demonstrate that the employee or her supervisor received any training on the sexual harassment policy and reporting obligations. Thus, the court concluded that the employer failed to establish that it was entitled to invoke the Faragher/Ellerth affirmative defense as it could not demonstrate that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior.

Whether other courts around the country follow this trend remains to be seen, but at least it gives some hope to employees who are always fighting against employers' claims that they could not have possibly discriminated because they have an anti-discrimination policy. After all this is perfectly logical reasoning right?

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