It has been a long time since the 1991 Clarence Thomas Supreme Court confirmation hearings brought the issue of sexual harassment to the forefront of public consciousness. Hundreds of thousands of unlawful harassment claims later, most employers have policies in place announcing their opposition to harassment and providing employees with avenues to complain and seek redress. Yet the fact that thousands of claims continue to be filed each year, costing employers tens of millions of dollars in damages and attorneys’ fees, indicates that problems remain. Constant changes in the law make formulating the right unlawful harassment policy a continuing challenge. Indeed, sometimes an employer’s well-intended policy simply seeking to combat unlawful harassment can lead to unanticipated legal liability. This article addresses key issues and offers practical guidance for adopting the right policy.
Reduced to its simplest formula, “hostile workplace” unlawful harassment is conduct directed against an individual because of his or her membership in a protected class that causes the workplace to be “hostile” within the meaning of the law. How many instances of harassment, the types of conduct that will be considered harassing and at what point the working environment will be considered legally “hostile” depend on a multitude of factors.
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