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Jim Radogna

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Is Zero Tolerance Enough?

A recently filed lawsuit against an auto dealership accused a sales manager of sexual harassment and sexual battery against a salesperson. According to the complaint, the employee was harassed continuously over a ten day period and ultimately quit due to the alleged behavior.  The complaint further stated that the dealership should have known what was going on and tried to correct it.

The dealership responded that the claims have no merit, that it has a zero-tolerance harassment policy and that human resources was not contacted about the situation, as its employee handbook specifies.

I have no idea what the true merits of this particular case are, but it brings to mind what an uphill battle fighting these claims can be.

In some cases, employers may be considered to be “strictly liable” for sexual harassment, meaning that the employer is liable for harassment by an employee or other individual even if the employer did not know about the harassment or acted immediately to stop it. Fortunately, the Supreme Court has recognized a viable defense to this liability. If an employer can prove that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior and the complaining employee unreasonably failed to take advantage of any preventative or corrective opportunities the employer provided or to otherwise avoid harm, the employer may avoid liability for unlawful harassment. Note however, where a supervisor’s harassment includes a tangible employment action (for example, firing the individual); this defense may not be used. An employer is always liable for harassment by a supervisor on a prohibited basis that culminates in a tangible employment action. The Supreme Court recognized that this result is appropriate because an employer acts through its supervisors, and a supervisor's undertaking of a tangible employment action constitutes an act of the employer.

The result in the this case may well come down to whether or not the court believes that the employer exercised “reasonable care” and that the employee “unreasonably” failed to take advantage of opportunities that the employer provided.

Most dealerships have an anti-harassment policy in place that they have all of their employees sign. That’s a great first step, but the questions remain: Have the employees actually read the policy and do they really understand it? Are they really aware of the procedures set forth in the policy to protect them from harassment?

If employees are trained on exactly what to do in the case of harassment (like who to report it to, and so forth) and fail to do so, the dealer will likely be in a better position to defend itself against a claim. On the other hand, if victims of harassment are uncertain about whom to report the harassment to within the company or worse yet, their claims are not taken seriously; they may feel their only recourse is to contact an attorney. That’s when it gets ugly.

The following procedures can be helpful in demonstrating that an employer has taken reasonable care in preventing or mitigating harassment:

  • Preparing and adopting an anti-harassment policy and communicating the anti-harassment policies to all employees.
  • Clearly communicating that harassment will not be tolerated and clearly explaining prohibited conduct.
  • Creating a sexual harassment complaint procedure and explaining the employee’s obligation to report any conduct that may be viewed as harassing.
  • Providing every employee with a copy of the harassment policy and complaint procedure, and redistributing it periodically.  The policy and complaint procedure should be written in a way that will be understood by all employees in the employer's workforce.
  • Making the anti-harassment policy easily accessible via the company intranet, posters, employee handbooks and including it in the new-hire process.
  • Providing sexual harassment training to all employees to ensure that they understand their rights and responsibilities.
  • Taking any claim seriously and investigating it.
  • Taking prompt and appropriate action.

Unfortunately, being a traditionally male-dominated industry, harassment claims against auto dealerships are not an uncommon occurrence. Having a policy in place and hanging posters may not be enough to adequately protect yourself.

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