CONTROLLING SEXUAL HARASSMENT LIABILITY
By Joel A. Klarreich, Esq., of Klein Heisler & Klarreich, P.C.
A temporary help or permanent placement service may not only be held liable for the negligence of its own employees (the common law doctrine of Respondeat Superior) but may be held responsible for the illegal conduct of its customer’s employees. In the area of sexual harassment, this in fact is the law governing those in the personnel industry. Federal and State anti-discrimination statues have been interpreted by the courts to hold firms operating in the personnel industry, particularly temporary help service firms, responsible for damages resulting from the sexual harassment of a temporary employee by a client while on assignment. All that the injured employee need prove to impute liability to the temporary help service is that the service knew or should have known of the wrongful conduct, that it had some control over the situation (i.e. the service could have removed the temporary for the assignment) and that it has failed to take such corrective actions. Similarly, a permanent placement service could be found liable in tort (i.e. negligence, intentional infliction of emotional distress), or possibly under federal or state anti-discrimination statute when the service knowingly sends a candidate for employment on an interview with a client the service knew or should have known would sexually harass the employment candidate either during the interview process or upon employment. This article focuses on how to reduce your liability resulting from sexual harassment when you may be incapable of controlling the work environment where the conduct occurred.
To adequately manage your exposure, it is necessary to understand the elements of sexual harassment and how liability attaches. Sexual harassment is of two varieties: quid pro quo harassment and hostile/offensive work environment harassment. Quid pro quo harassment occurs when an employee is terminated, passed up for a raise, or is refused some other job related benefit because of his or her gender. Hostile or offensive work environment harassment occurs where an employer creates or allows to exist a sexually abusive work environment and the person complaining of the harassment is incapable, because of the harassment, of performing his or her duties. For both varieties of sexual harassment, the conduct complained of need not be sexual in nature: however, the conduct must be directed, because of gender, at the injured employee.
To establish a case of quid pro quo harassment, the injured employee must prove an employment benefit was denied him or her by a person in a position of authority capable of making such employment benefit decisions (typically, a manager or supervisor of the injured employee and not a peer or subordinate). Once the injured employee establishes these facts, the employer is strictly liable for the wrongful conduct of the manager. The liability is “strict” in that no act or non-act of the employer will relieve the employer of liability for the wrongful conduct of its supervisor. Therefore, ideal to containing the risk of quid pro quo liability is limiting the number of individuals who make employment related decisions, closely monitoring those decisions and formalizing review processes.
In the case of a temporary help service, take extreme caution as to the clients you service. Although clients do not set pay rates, employee benefits, etc., it is conceivable that if the manager of a client deprives a temporary employee of a benefit solely because of gender, that client may be guilty of quid pro quo sexual harassment which, if the temporary help service knew about, could be imputed to the service.
In a hostile or offensive work environment harassment case, the wrongdoer may be any member of your or your client’s organization. He or she need not be a manager or supervisor. To set forth a cause of action, the injured party must establish that harassment occurred, that it was sufficiently severe or pervasive to alter the conditions of employment which created an abusive work environment, and that the employer knew or should have known of the harassment yet failed to take remedial action. The most effective method with which to insulate your service, whether temporary or permanent, from this kind of liability is the adoption and expedient enforcement of strong anti-discrimination policies. Case law is replete with instances where a hostile or offensive work environment was found to exist yet the injured employee was denied a recovery because the employer had a strong policies against sexual harassment and when alerted to the situation, took expeditious and effective measures to eradicate the sexual harassment. Such policies, which can easily be developed and implemented, include:
- written policy guidelines prohibiting all wrongful conduct
- clear descriptions of wrongful conduct
- detailed complaint procedures
- guarantees of confidentiality
- assurances of no reprisals, etc.
Additionally, temporary help services should develop specific policies and procedures dealing with sexual harassment at a client, whether directed at the service’s temporary employee or otherwise. Examples include quick removal of a harassed temporary employee followed with timely assignment substitutions. If the harassment was directed toward a person other than your temporary employee, remember, your service was just put on notice of that client’s alleged conduct which may, in a future action (i.e. should one of the service’s temporaries ultimately be harassed) satisfy the “known or should have known” element of the hostile or offensive work environment cause of action. As such, give serious thought as to whether you want to continue to service this client.
By implementing strong written policies, and changing your management with strict enforcement of those policies, at best you will contain your sexual harassment liability and, at worst, you will lessen considerably the onerous task of defending a sexual harassment claim.
Alan S. Gaynor, Esq., an associate with Klein, Heisler & Klarreich, P.C. assisted in the preparation of this article.
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