Workplace Harassment Lawsuit Defense for Employers

Employer Liability Defense Counsel for Sexual Harassment Claims

Elizabeth K. Stepp
Workplace Harassment Lawsuit Defense for Employers
Partner & Yale Graduate

Allegations of sexual harassment in the workplace can expose employers to substantial liability. As a result, when facing accusations of perpetrating or facilitating unlawful harassment, employers must act quickly to investigate the accusations and build an informed and strategic defense. At Oberheiden P.C., we defend employers in cases involving all forms of alleged harassing conduct, and we work diligently to protect our clients from negative consequences by all means available.

Our employer liability defense lawyers represent employers in all types of workplace disputes—including those involving allegations of sexual harassment and other forms of harassing behavior. Whether employers have anti-harassment policies in place or they have failed to address potential harassment-related concerns, there are defense strategies that our lawyers can use to mitigate (if not eliminate) their potential liability. But, prompt intervention can be critical; and, with this in mind, we encourage you to contact us promptly for a confidential consultation.

When Employers Can Face Liability for Workplace Harassment

Employers can face liability for workplace harassment in a wide range of circumstances. Broadly, however, workplace sexual harassment cases fall into three categories:

Hostile Work Environment

The first category of workplace sexual harassment cases involves claims based on a hostile work environment. Traditionally, both Title VII of the Civil Rights Act of 1964 and state ant-harassment and discrimination laws have required evidence of a hostile work environment (in the absence of a quid pro quo) to substantiate a claim for harassing conduct. Recently, however, this has started to change, and in some jurisdictions proof of a hostile work environment is no longer required.

Where proof of a hostile work environment is still required, substantiating a sexual harassment claim involves proving that the harassing conduct an employee has experienced is so severe or so pervasive that it makes continuing to work in their current environment untenable. In many cases, this involves proving that personnel with supervisory authority (whether supervisors, managers, or executives) have either ignored, facilitated, or participated in a pattern of harassment. While the burden is on the complaining employee to show that the alleged harassment at issue has created a hostile work environment, the courts, the Equal Employment Opportunity Commission (EEOC), and state equal employment agencies will often give employees broad leeway to assert allegations that they feel unsafe or uncomfortable.

Quid Pro Quo Harassment

Quid pro quo harassment claims involve allegations that employees were required or persuaded (either explicitly or implicitly) to engage in sexual conduct in exchange for employment-related benefits. In these cases, showing that the employee failed to take advantage of the offer for personal gain is not a defense to liability. The offer or attempted persuasion itself can be enough to establish liability in many cases.

Likewise, showing that an employee acquiesced to a sexual advance for personal gain generally is not a defense to liability. In these cases, the courts and administrative agencies will focus on the unequal balance of power involved. If an employee feels pressured to engage in sexual acts to either protect his or her job or to advance in his or her career, this itself is harassing behavior that can warrant a claim for damages—including punitive damages in some cases.

One-Off Instances of Sexual Harassment

While proof of a hostile work environment or quid pro quo harassment is often required, one-off instances of sexual harassment can also give rise to employer liability in some cases. This includes one-off instances involving supervisors, managers, executives, co-workers, and other employees.

While quid pro quo harassment claims necessarily involve some form of tangible employment action (or fulfilled or unfulfilled threats of adverse employment action), sexual assaults and other serious forms of sexual harassment can give rise to liability regardless of the employment implications involved. As noted above, they can also give rise to liability regardless of the specific parties involved. If an employee is alleging that he or she was sexually assaulted or abused in the workplace or while on a job assignment, you will want to consult with an experienced attorney as soon as possible.

Responding to Employees’ Harassment Complaints

When facing employees’ harassment complaints, a prompt and effective response is critical for protecting both the company’s reputation and its bottom line. Even unsubstantiated allegations of sexual harassment in the workplace can cause severe reputational harm. To avoid harm in these situations, employers must work closely with highly experienced defense counsel to respond in a way that both shows respect for employees’ legitimate concerns and makes clear that the company is prepared to defend against unsubstantiated claims by all means available.

With this in mind, some of the preliminary steps involved in responding to allegations of workplace harassment include:

Reviewing the Company’s Anti-Harassment Policies and Management Training – If the company has effective ant-harassment policies in place, has conducted appropriate management training, and has taken reasonable care to prevent harassment in the workplace, these are among the several factors that can mitigate any potential liability under both state and federal law.
Conducting a Thorough Internal Investigation – Any time a company is facing allegations from an employee, conducting a thorough internal investigation is critical for gaining a clear understanding of the true facts at hand.
Assessing the Validity of the Employee’s Allegations – After analyzing the facts at hand, companies that are facing allegations of sexual harassment should work with their counsel to assess the validity of the allegations—as this will inform their next steps.

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

Defending Against Employer Liability for Harassment in the Workplace

After taking these preliminary steps (among others), employers and their defense counsel should be able to begin making informed decisions about how to respond to employees’ sexual harassment allegations. While there are several potential defenses to workplace harassment allegations, employers must choose the right defenses based on the relevant facts, circumstances, and governing law.

With this in mind, some examples of potential defenses to harassment complaints involving supervisors, co-workers, and other personnel include:

Taking Adequate Steps to Prevent Unlawful Harassment – If an employer has taken adequate steps to prevent unlawful harassment, this can provide a defense to liability in some cases. However, employers must still address the risk of facing allegations of vicarious liability based on employees’ conduct within the scope of their employment.
Insufficient Evidence to Substantiate Liability – When pursuing harassment claims, employees have the burden of proof. By reporting harassment in the workplace according to the employer’s complaint procedure, preserving relevant communications, and taking other steps, employees can often assemble the proof they need. However, when employees don’t have the proof they need, then liability is not warranted.
False or Insufficient Allegations of Sexual Harassment – False and misguided allegations of sexual harassment in the workplace also do not warrant employer liability. If an employee has fabricated allegations of workplace harassment, or if an employee’s allegations, while true, do not substantiate a claim for unlawful conduct under state or federal law, this should serve as a complete defense.

FAQs: Sexual Harassment Claims in the Workplace

What Laws Apply to Workplace Harassment Claims?

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment as a form of sex-based employment discrimination. Sex is one of several protected characteristics under Title VII, and discrimination based on any protected characteristic can give rise to employer liability. State anti-discrimination laws frequently treat sexual harassment as a form of sex-based employment discrimination as well, and many states have enacted laws that specifically address harassment in the workplace.

Can Employers Face Vicarious Liability for Employees’ Sexual Harassment in the Workplace?

Yes, employers can face vicarious liability for their employees’ sexual harassment in appropriate cases. With that said, there are also several steps that employers can (and should) take to mitigate their liability risk when an employee accuses a supervisor, manager, executive, or co-worker of harassment at work.

Do Anti-Harassment Policies and Management Training Serve as Defenses to Employer Liability for Sexual Harassment?

If a company has custom-tailored anti-harassment policies, conducts management training, and encourages and enforces compliance with its policies on an ongoing basis, all of these are factors that can serve to mitigate the company’s liability in the event of a sexual harassment complaint from one of its employees. Assessing the implications of these mitigation efforts must be done on a case-by-case basis.

Does Taking Corrective Action Mitigate an Employer’s Liability for Sexual Harassment in the Workplace?

Along with taking proactive measures to prevent sexual harassment in the workplace, taking corrective action when necessary can help to mitigate employers’ liability exposure as well. With that said, employers must be extremely careful in this scenario to avoid making statements or acknowledgements that could limit the defenses they are able to assert.

Do Employers Facing Harassment Complaints Also Need to Be Concerned About Retaliation Complaints?

In many cases, employees who allege harassment in the workplace will also allege retaliation if they believe that their employer is attempting to silence them. Wrongful termination claims involving retaliation allegations are common—so, yes, employers need to be concerned about retaliation complaints in many cases as well.

Oberheiden P.C. | Experienced Defense Counsel for Workplace Sexual Harassment Claims

If your company is facing a sexual harassment claim from a current or former employee, we encourage you to contact us promptly so that we can help. To speak with an experienced attorney at Oberheiden P.C. in confidence as soon as possible, call 888-680-1745 or tell us how we can reach you online now.