Since the landmark 1998 Supreme Court decisions in Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, most companies have recognized the importance of adopting proper EEO and anti-harassment policies. A new line of cases suggest that this is not enough. Various lower courts, such as in the recent case, Winchester v. National Mutual Insurance Co., have held that an employer can meet its burden to show that it took reasonable efforts to “prevent and correct” harassment only if it also conducts training and otherwise acts to actively engage employees with the policies.

The Faragher / Ellerth Affirmative Defense

In Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries v. Ellerth, 524 U.S. 742 (1998), the U. S. Supreme Court held that an employer has a complete defense to liability for certain sexually harassing conduct if it can prove that: (1) it exercised reasonable care to prevent and correct the harassment; and (2) the employee unreasonably failed to take advantage of the corrective or preventive opportunities which the employer provided, or to avoid harm otherwise. This defense applies only when the harassment did not culminate in a tangible adverse employment action, such as termination or demotion.

Current State of the Law

As is often the case with Supreme Court decisions, it has fallen on lower federal courts to flesh out the meaning of these standards, including what the Court meant by the obligation of employers to “prevent and correct” harassment. Is it enough for a company to adopt equal employment opportunity and anti-harassment policies, place them in a handbook and require employees to acknowledge receipt?

Although the answer is far from settled, a consensus appears to be growing among lower courts that issuing EEO and harassment policies, by itself, is not enough. Very recently, in Winchester v. National Mutual Life Insurance Co., No. 3-09-CV-1225-M-BD (N.D. Tex. March 15, 2011), a federal district court denied summary judgment on a Title VII sex harassment claim because the Company’s only evidence that it took steps to “prevent” the harassment was that it issued harassment prohibition policies and made them available on their intranet. The court found that this was insufficient. The court strongly suggested that additional steps would be needed to avoid liability, stating that “the employer presented no evidence that it (1) took specific actions to make its employees aware of its sexual harassment policy, (2) reviewed the policies with its employees and supervisors, or (3) trained its employees on the policies.”

The Take-Away

While the legal requirements regarding the obligations of an employer to “prevent and correct” harassment are still evolving, it is likely that companies are taking unnecessary risk if their only action in this regard is adopting EEO and anti-harassment policies. Best practice suggests that employers should train employees about the policies and take other pro-active measures to educate employees as to the conduct prohibited and permitted under these policies. Doing so can decrease the risk of potentially lengthy and expensive litigation.