The Role of Compliance Programs in Avoiding Employment Law Liability

Obviously the main reason that employers should implement, maintain and vigorously enforcement compliance programs in employment law areas is to ensure that employees can work and thrive in a workplace that is free from the distractions and pressures caused by harassment and discriminatory practices.  The idea is to eliminate, or drastically reduce, harassing or discriminatory behavior in the first place.  However, if a supervisor or other agent of an employer does engage in activities that result in a complaint of harassment or discrimination, an employer can significantly avoid certain potential liabilities to the alleged victim if the employer can demonstrate that they have implemented and maintained effective compliance efforts.

The employer should be able to demonstrate beyond dispute that it has an anti-harassment policy and that employees, including alleged victims of harassment, are familiar with the policy.  An employer will likely not be able to meet this standard if there are factual disputes with regard to such things as when the alleged victim personally received a copy of the anti-harassment policy; whether she received any training or other oral notice of the policy, and when the policy was posted in the employee break room.  Moreover, the fact that an employer made some effort to distribute its anti-harassment policy after an alleged victim was hired, such as during the employee’s new employee orientation program, would not be sufficient if evidence cannot be introduced to show that that these efforts extended to the alleged victim and other persons already employed prior to the time that the anti-harassment policy was implemented. On the other hand, however, an employer is likely to be granted summary judgment if it can show that it had a comprehensive anti-harassment policy was adequately disseminated and that it conducted regular training regarding harassment issues.  Support for demonstrating dissemination of information can be obtained by showing that employee’s received a written summary of their rights under applicable anti-harassment laws.   In addition, companies should implement formal anti-harassment training programs either to comply with specific state regulatory requirements (e.g., California) or simply to provide further support for an argument that it has educated managers and employees about the issues surrounding harassment in the workplace.

The content in this post has been adapted from material that appeared in Business Counsel Update (March 2007) and is presented with permission of Thomson/West.  Copyright 2008 Thomson/West.  For more information or to order call 1-800-762-5272.

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