All employers should carfully formulate and implement anti-harassment policies and provide anti-harassment training to their workers. In two important cases from 1998—Faragher v. City of Boca Raton, 524 U.S. 775 and Burlington Industries v. Ellerth, 524 U.S. 742--the U.S. Supreme Court established a defense to harassment allegations. In this pair of cases the high court held that employers have a defense to unlawful harassment when the employer can prove 2 elements: “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,” Ellerth at 765. Although the Court did not require employers, under federal law, to issue and enforce a workplace anti-harassment policy, these decisions encouraged employers to promulgate an enforce anti-harassment policies, and encouraged employees to take advantage of these policies. As noted by the Court,  so long as the employee alleging harassment has not suffered “a tangible employment action” by being  fired, demoted, or reassigned to an undesirable position, an employer will prevail on this defense if it can demonstrate that (a) it had an anti-harassment policy in place that was “suitable to the employment circumstances,” and (b) that the employee in question failed to reasonably take advantage of the available preventative or remedial opportunities provided by reporting the harassment to the employer according to the policy.

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As a result, to avoid potential liability for sexual and other forms of unlawful harassment, employers should implement an  anti-harassment policy, distribute this information to all employees (typically by asking employees to sign a paper  copy version of the policy, acknowledging their receipt, then publishing the policy on, e.g., the firm intranet and/or  posting it in a conspicuous location in the workplace), conduct periodic anti-harassment training (it is particularly important that supervisors are well trained as to what constitutes unlawful harassment and what actions to take under the firm’s policy; and, by the way, anti-harassment training is actually required of many private employers under state law in a handful of states, mostly in New England, and required of public employers in a large minority of states), promptly and thoroughly investigate any harassment allegations and document the nature and results of the investigation, and take prompt and effective remedial action, making sure not to require the complaining employee to a transfer or change in jobs to resolve the situation, an action that might lead to a claim of unlawful retaliation against the employee for reporting the harassment.

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