Private employers can minimize the risk from sexual harassment claims with a good set of personnel policies. Under federal law, for sexual harassment inflicted by a co-worker (as opposed to a supervisor), the employer is liable for a hostile work environment if it was negligent in discovering or remedying the co-worker’s harassment (the employer either knew or should have known and failed to stop the harassment). E.g. Torres-Negron v. Merck & Co., 488 F.3d 34 (1st Cir. 2007). Employers face vicarious liability for sexual harassment by supervisors, but under the so-called “Faragher/Ellerth Defense,” derived from Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), an employer can avoid or limit liability by (a) exercising reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) showing that the harmed employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
Often, employers can demonstrate that they acted reasonably in preventing sexual harassment by drafting, implementing, and educating their workforce with a good set of policies. The First Circuit has said that “[a]n employer is not liable [for a hostile work environment] if it has an anti-harassment policy with a complaint procedure that an employee unreasonably fails to use.” Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 84 n.2 (1st Cir. 2006).
There’s no one-size-fits-all approach to sexual harassment policies, and some employers invest substantial resources in developing rock-solid guidelines. But they don’t really know if those policies are up to snuff until they get sued and the policies go under the judicial microscope.
With the rise of #MeToo, private employers aren’t the only ones with a renewed focus on preventing sexual harassment in the workplace. The federal judiciary had at least one very high-profile #MeToo incident, which was likely the reason that Chief Justice Roberts chose to focus on preventing sexual harassment in his 2018 Year-End Report on the Federal Judiciary. In the report, the Chief Justice noted that a Federal Judiciary Workplace Conduct Working Group has “set out a series of specific recommendations to improve the workplace environment” to prevent sexual harassment.
Earlier this month, the Federal Judiciary implemented the Working Group’s recommendations and announced new policies on preventing sexual harassment in the court system. In the revised Code of Conduct for Judicial Employees, the new policies say that a “judicial employee should not engage in sexual or other forms of harassment of court employees or retaliate against those who report misconduct. A judicial employee should hold court personnel under the judicial employee’s direction to similar standards. A judicial employee should take appropriate action upon receipt of reliable information indicating a likelihood of conduct contravening this Code. Appropriate action depends on the circumstances and may include, for example, reporting such conduct to a supervisor, court executive, or chief judge.” The new policies also include expanded training to prevent sexual harassment, a dedicated phone line and an intranet site to report harassment or abusive behavior to a centralized office, and a dispute resolution plan.
Whatever impact the Federal Judiciary’s new policies has on preventing sexual harassment in the court system, one side effect is that they provide a roadmap for private employers. After all, if the sexual harassment policy is good enough for the Federal Judiciary, it’s probably good enough for a private employer to implement and use a similar policy (at least as a baseline), just in case the employer gets sued under federal law for a hostile work environment. It seems unlikely that a federal court, or the Equal Employment Opportunity Commission, will say that the policy that the Federal Judiciary has imposed on itself isn’t good enough for a private employer. It gives a whole new meaning to the age-old phrase “good enough for government work!”