Have your employees recently been trained on sexual harassment?  Is your sexual harassment policy conspicuously posted?  Does your policy have a reasonable complaint mechanism?  If the answer is “no” to any of these questions, then you may be depriving your company of a defense to certain sexual harassment claims.

When an employer is sued by an employee alleging hostile work environment sexual harassment by a supervisor, the employer can defend against the claim if the employer can prove that: 1) the employer exercised reasonable care in preventing and correcting any sexual harassment; and 2) the employee unreasonably failed to take advantage of the preventative or corrective measures.  Taking its name after the two Supreme Court cases where the affirmative defense was created, the defense is called the Faragher/Ellerth defense.

In Pullen v. Caddo Parish School Board, —F.3d —, 2016 WL 3923867 (5^th Cir. July 20, 2016), the Fifth Circuit recently held that the Faragher/Ellerth defense was not available because, among other reasons, the employer had not recently trained its employees on sexual harassment.  The Court held that an employer can satisfy the first prong of the Faragher/Ellerth defense by “implementing suitable institutional policies and educational programs regarding sexual harassment.”  Id. at *3 (internal quotations and citations omitted).  The harasser’s knowledge of the policy as well as the victim’s awareness of it are also relevant as to whether the company reacted reasonably.

While no one disputed that the School Board had a reasonable sexual harassment policy, the issue was whether it was promulgated and disseminated to employees.  The court found that there were issues of fact that “if believed, would show that employees at the central office were not trained on sexual harassment, were not informed of the existence of a policy, were not shown where to find it, and were not told whom to contact regarding sexual harassment.  This would be a sufficient basis for a reasonable jury to find that the company did not take reasonable steps to prevent and remedy sexual harassment.”  Id. at *4.

Although the Fifth Circuit case is not precedent in Kentucky or Tennessee, which are both in the Sixth Circuit, a prudent employer should take heed of its warnings.

• Provide annual sexual harassment training to all employees.
• Review the harassment policy to make sure it provides a proper complaint mechanism.
• Post the policy conspicuously.
• Require employees to sign an acknowledgement of receipt of the policy and an acknowledgment of receipt of training.

Our lawyers are experienced in reviewing and drafting sexual harassment policies and in providing on-site training for employees.  Let us know how we can help you.