Employment Law Basics for Hawaii Employers – Policies and Training for Prevention and Threat Reduction
It is effectively established now beneath federal Title VII law that an employer is liable for actionable sexual harassment brought on by a supervisor with “quick (or successively larger) authority over the employee.” On the other hand, in situations where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to steer clear of Title VII liability and damages.
Below such affirmative defense no matter whether an employer has an anti-harassment policy is relevant proof. Also vital is effective supervisory training and coaching of personnel on the harassment policy and complaint procedure.
Coaching and educational programs for all staff take on an even larger degree of significance under Hawaii state law, HRS Chapter 378. peo benefits at present is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors.
Although the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a current Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.
The April 16, 2009 Illinois choice will definitely be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation. Accordingly, it is crucial that Hawaii employers understand the importance of having an successful policy and corporation-wide education system on not only a defense to a sexual harassment claim, but prevention.
I. The Value of Having an Powerful Harassment Policy
A. The Faragher/Ellerth Defense
Getting an helpful sexual harassment policy and education program will drastically improve the possibility of avoiding liability beneath the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court.
Exactly where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment selection, the employer may possibly stay away from liability by displaying that: (1) the employer exercised affordable care to protect against and promptly appropriate any harassing behavior and (two) the plaintiff unreasonably failed to take benefit of any preventive or corrective possibilities provided by the employer to stay away from harm. “A tangible employment action constitutes a significant adjust in employment status such as hiring, firing, failing to promote, reassignment with considerably distinct responsibilities or a choice causing a considerable adjust in positive aspects.”
The value of the affirmative defense was considerably improved by a U.S. Supreme Court’s selection in which the Court held that the defense is obtainable in constructive discharge circumstances unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a reduce in pay.
A zero-tolerance harassment policy need to fit the environment and employees:
Though proof that an employer had promulgated an antiharassment policy with complaint procedure is not essential in each and every instance as a matter of law, the need for a stated policy suitable to the employment situations may well appropriately be addressed in any case when litigating the first element of the defense. The policy ought to be written in plain English, so that all employees regardless of their educational level or background can recognize it … [a] policy should really consist of a clear and precise definition of unlawful harassment so that workers know what kind of conduct is prohibited by the policy and will be in a position to recognize that conduct really should it occur.
Accordingly, if the alleged harasser has supervisory authority more than the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is in a position to effectively raise the affirmative defense.
B. Ideas On Drafting a Zero-Tolerance Policy and Complaint Procedure.
(1) Create in uncomplicated English.
(two) Include things like a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.
(three) State the company’s “zero-tolerance” philosophy in the policy with regards to all types of harassment,
(four) Designate at least two specially educated managers who will be accountable for investigating harassment complaints for the enterprise.
(five) Determine the complaint process that will be applied to investigate complaints of harassment by supervisory personnel, co-workers and outsiders.
(6) Supply a “clear chain of communication,” enabling personnel to step outside of the regular hierarchy in the event the supervisor is the harasser and think about obtaining a toll-free of charge quantity personnel can call.
(7) State that personnel who report prohibited conduct will be protected from retaliation.
(eight) State that the employer will promptly investigate the matter in an objective and discrete manner.
(9) Offer the type of disciplinary action to which offenders can expect to be subjected.
(ten) State that the employer will also take remedial action.
(11) Train your management personnel and line personnel on the policy and process.
(12) Have every single employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received coaching on the harassment policy.
C. The Faragher/Ellerth Defense and Hawaii Law
Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against people in practically all elements of employment. Having said that, it remains an open query no matter whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense.
Presently, below regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of no matter if tangible action is taken: