There’s no place for sexual harassment in today’s workplace, and employers have a responsibility to investigate every allegation. But reacting after a complaint is made doesn’t fix a culture that allows sexual harassment to occur. A proactive approach, incorporating a strong policy, backed by training and commitment at all levels, is key to building an organizational culture that discourages sexual harassment. Join Philip Miles, employment lawyer, McQuaide Blasko, as he outlines the steps for building policies and training plans to prevent sexual harassment in the workplace.

1. Building Effective Sexual
Harassment Prevention
Policies and Training
Philip Miles, Shareholder Attorney,
McQuaide Blasko, Inc.

2. W h y Y o u r S e x u a l H a r a s s m e n t
P o l i c y M a t t e r s
• Some defenses to harassment claims require reasonable efforts to
prevent harassment before it even occurs.
• A strong policy signals to employees that harassment is taken
seriously and not tolerated.
• It provides a roadmap for employees who may be experiencing (or
witnessing) harassment to report the problem.

3. W h a t T o I n c l u d e i n t h e S e x u a l
H a r a s s m e n t P o l i c y
• Protected Characteristics (we’re focusing on sexual harassment, but
hostile work environment claims may arise from other protected
characteristics).
• Definition of Prohibited Harassment.
• Complaint Procedures.
• Acknowledgment Forms.
• DisciplinaryConsequences
• Anti-Retaliation Policy!

4. P r o t e c t e d C h a r a c t e r i s t i c s
• TitleVII: Sex, Race, Color, Religion, and National Origin
• ADA: Disability
• ADEA:Age (over 40)
• USERRA: Military orVeteran Status
• GINA: Genetic Information
• State Laws:Vary from “Weight” to “PoliticalAffiliation”

5. L e t ’ s T a l k A b o u t “ S e x ”
• Covers women…
• …and men!
• Gender Stereotyping
• Supreme Court, Bostock v. Clayton County (2020):
– Sexual orientation; and
– Gender Identity (e.g., non-binary, transgender, gender
nonconformity, etc.).

6. G e n d e r S t e r e o t y p i n g
Homosexual employee "has a high voice and walks in an effeminate manner . . . . did not
curse and was very well groomed; filed his nails instead of ripping them off with a utility
knife; crossed his legs and had a tendency to shake his foot 'the way a woman would sit.'
[He] also discussed things like art, music, interior design, and decor, and pushed the
buttons on his nale encoder with 'pizzazz.’”
His co-workers harassed him mercilessly, calling him "Princess" and "Rosebud," not to
mention anti-gay slurs.They also placed "man-seeking-man“ newspaper ads with
mocking commentary on his workstation.
Prowel v.Wise Business Forms, Inc., Third Circuit Court of Appeals (2009).

7. P r o h i b i t e d C o n d u c t
• Harassment on the basis of any protected characteristic
• Quid pro Quo harassment
• HostileWork Environment Harassment

8. Q u i d P r o Q u o
Unwelcome sexual advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature:
1. Submission is either explicitly or implicitly a term or condition of
employment; or
2. Submission or rejection is basis for employment decisions affecting
individual.

9. H o s t i l e W o r k E n v i r o n m e n t
• Textbook definition: Unwelcome harassment on the basis of a
protected characteristic that is sufficiently severe or pervasive to
alter the working conditions of an employee and create a hostile
work environment.
• Policy should include examples and “plain English” – Example:
– Requests for sexual favors, and unwelcome sexual advances;
– Obscene or pornographic remarks, jokes, images, videos, etc.;
– Unwelcome touching or other conduct of a sexual nature;
– Epithets, slurs and derogatory remarks, stereotypes

10. C o m p l a i n t P r o c e d u r e
• Employees who feel that they have been harassed or who witness
harassment should report.
• Multiple avenues of reporting:
– Supervisor OR
– Human Resources OR
– Depending on your organizational structure – Ex. members of
the board of directors at a non-profit, owners in partnership, etc.
• Limit the avenues of reporting to only those people with the
authority to address the problem and who understand the
importance of addressing the problem (i.e. supervisors, upper-level
management, human resources, ownership, etc.).

11. C o m p l a i n t P r o c e d u r e
• Assurance that employer will conduct an investigation;
• Note that employees should report harassment by third parties
(contractors, customers, vendors, etc.);
• If appropriate, the employer will take appropriate corrective action;
• All employees required to comply with investigations;
• Explanation of confidentiality

12. A N o t e A b o u t C o n f i d e n t i a l i t y
• Should strive to keep complaint and investigation as confidential as
possible…
• BUT cannot promise total confidentiality:
– Employer has an obligation to promptly correct ongoing
harassment;
– Employer has an obligation to comply with investigations
(EEOC, state agencies, etc.);
– Employer may be legally required to divulge information
through subpoena or litigation discovery;
• Make clear that nothing in confidentiality expectations is intended to
prohibit employees from discussing terms and conditions of
employment with others (“protected concerted activity”), reporting
to any government agency, any other disclosures protected by law
(whistleblower statutes, court orders, agency investigations, etc.).

13. A c k n o w l e d g e m e n t F o r m s
• Standard for all policies (and handbook generally): Make sure that
every employee signs an acknowledgment form showing that they
received a copy of the policy.

14. D i s c i p l i n a r y C o n s e q u e n c e s
• Make clear that the ultimate disciplinary action, termination, is on
the table;
• But, also leave room for discretion because harassment can cover a
broad range of misconduct and termination will not be appropriate
in every instance.
• Ex. “Any employee who violates this policy will be subject to
disciplinary action, up to and including termination of their
employment.”

15. A n t i - R e t a l i a t i o n P o l i c y
• Discrimination statutes prohibit retaliation and so should your policy.
• Include an express statement that the employer will not retaliate
against:
– Any employee who reports in good faith unlawful harassment,
discrimination, or retaliation;
– Any employee who participates in any investigation, proceeding
or hearing conducted by the employer, government agency, or
court.
• The employer will take prompt disciplinary action, up to and
including termination against any employee who retaliates against
an employee for engaging in protected activity.
• Employer will also take remedial action if an employee knowingly
makes a false claim.

16. T r a i n i n g
• Top Secret: Employees do not always read the employee
handbook!
• Training is important to make sure that nonsupervisory
know the rules, and that supervisory employees know
respond.
• Training also sets the tone and influences culture – it’s an
opportunity for employers to show that this issue is
management.
• Training may also help with those defenses that require a
that employers make reasonable efforts to prevent

17. T r a i n i n g
• What does your state require?
• When and for how long?
• Training materials for all employees –What to cover?
• Training materials for supervisors –What to cover?
• Documentation
• Feedback

18. S o m e S t a t e s R e q u i r e T r a i n i n g
• I practice in Pennsylvania – no requirements (but still encouraged!
See previous slides).
• State law considerations:
– Which employers are covered?
– Which employees are covered (usually some combination of
supervisory and all)?
– How often? How long? Methods (ex. CT requires “classroom-like
setting” and participants must be able to “ask questions and
receive answers”)?
– What content is required?
– What are the penalties for noncompliance?
– What documentation must employers keep?

19. W h e n A n d F o r H o w L o n g ?
• Caveat: May be dictated by state law
• General guidance:
– Onboarding –Train new employees – review policy;
– All employees – 1 hour every other year
– Supervisory employees – 2 hours every other year

20. T r a i n i n g C o n t e n t ( A l l E m p l o y e e s )
• Identify the protected characteristics;
• Define sexual harassment with examples; and
• Cover anti-retaliation.
• Great news! You already have all of these in your policy!

21. T r a i n i n g C o n t e n t ( A l l E m p l o y e e s )
• Go into more detail than the policy – For example, cover the elements
of a claim:
• Based on a protected characteristics
• Employee either:
– suffered a tangible employment action (quid pro quo);
– Suffered harassment that was sufficiently severe or pervasive to
alter the working conditions and create a hostile work
environment (hostile work environment);
• Offensive and unwelcome; and
• Basis for attributing liability to employer.

22. F i r s t E l e m e n t –
P r o t e c t e d C h a r a c t e r i s t i c
• Harassment must be based on a protected characteristic
• Example: Making fun of someone for being aYankees fan will not be
protected under the antidiscrimination statutes.
• General “harassment” or creating a “hostile work environment”
based on non-protected characteristics will generally not be unlawful
under antidiscrimination laws (obviously, other laws still apply – ex.
punching theYankees fan will still be assault!).

23. S e c o n d E l e m e n t -
Q u i d P r o Q u o
• Suffered a tangible employment action tied to harassment based on
a protected class;
– “Tangible employment action” - “[A] significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits,” Burlington
Industries, Inc. v. Ellerth, 524 U. S. 742, 761 (1998).
• Submission to unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct of a sexual nature is
either explicitly or implicitly a term or condition of employment; or
• Submission to, or rejection of, unwelcome sexual advances, requests
for sexual favors, and other verbal or physical conduct of a sexual
nature is basis for employment decisions affecting individual.

24. S e c o n d E l e m e n t –
H o s t i l e W o r k E n v i r o n m e n t
• Severe or pervasive:
– Severe - Degree of Harm
– Pervasive – Frequency, period of time
• One instance may be severe enough to trigger liability!
– Physical assault will ordinarily meet this standard;
– One use of slur has been found to be enough – but may depend
on circumstances.

25. T h i r d E l e m e n t –
O f f e n s i v e a n d U n w e l c o m e
• Objective
– Would it be objectively offensive and unwelcome to a reasonable
person?
– Ex. “I like your haircut” – Even if an employee genuinely takes
offense and claims to feel objectified – this would likely not be
objectively offensive to a reasonable person.
• Subjective
– Does the actual employee find it offensive and unwelcome?
– Ex. consensual relationships or banter will not meet this
standard.

26. F o u r t h E l e m e n t – B a s i s F o r
A t t r i b u t i n g L i a b i l i t y t o t h e E m p l o y e r
• Employers are not liable for every single thing that happens at
work!
• Although employers are generally “vicariously liable” for employees
acting within the scope of their employment, harassment will
ordinarily not fall within the scope of an employee’s duties.
• So, courts have established a framework for determining whether
the employer is liable for harassment.
• For all employees – sufficient to speak in generalities:
– If employees do not report, the employer cannot do anything to
correct the problem.
– The employer will take prompt steps to investigate allegations.
– The employer will take corrective action.

27. F o u r t h E l e m e n t – B a s i s F o r
A t t r i b u t i n g L i a b i l i t y t o t h e E m p l o y e r
For supervisory employees – go into greater detail so that they
understand the importance of responding appropriately and how the
defenses work as a technical matter:
Tangible Employment
Action
No Tangible Action
(Hostile Work
Environment)
Top Officials Vicarious Liability Vicarious Liability
Supervisors Vicarious Liability Vicarious Liability subject
to Affirmative Defense
Non-Supervisor or Third
Party
N/A Negligence Standard
Position
Of
Harasser
Type of Harassment

28. F o u r t h E l e m e n t – B a s i s F o r A t t r i b u t i n g
L i a b i l i t y T o T h e E m p l o y e r ( S u p e r v i s o r s
Who is a Supervisor?
• Anyone who has the authority to take a “tangible employment
action”
• Ex. Some employees who are identified as “managers” and have the
ability to assign day-to-day tasks may not meet this definition.

29. What is the Affirmative Defense?
The Faragher-Ellerth Defense (named for two Supreme Court decisions) allows
employers to escape liability for hostile work environment by showing:
• Employer exercised reasonable care to prevent and correct promptly any
harassment:
– Prevent: Have a strong policy (see previous section) and follow it;
– Prevent: Hold training;
– Correct promptly: Investigate; and
– Correct promptly: Remedial Action (separate employees, discipline
people found to have engaged in misconduct, etc.).
• Employee unreasonably failed to take advantage of any preventive or
corrective opportunities:
– Ex. failed to report; or
– Was offered assistance but declined.
F o u r t h E l e m e n t – B a s i s F o r A t t r i b u t i n g
L i a b i l i t y T o T h e E m p l o y e r ( S u p e r v i s o r s

30. Negligence Standard
When is an employer liable for harassment by a co-worker (non-
supervisor) or third party (contractors, vendors, customers, etc.):
• The employer knew or should have known about the harassment;
and
• The employer failed to take prompt and appropriate action to stop
the harassment.
F o u r t h E l e m e n t – B a s i s F o r A t t r i b u t i n g
L i a b i l i t y T o T h e E m p l o y e r ( S u p e r v i s o r s

31. T r a i n i n g C o n t e n t ( A l l E m p l o y e e s )
• Warning about electronic communications (social media, messaging
apps, email, etc.);
• Cover confidentiality with limitations addressed above;
• Cover anti-retaliation provisions;
• Cover reporting avenues;
• Walkthrough the policy.

32. T r a i n i n g C o n t e n t ( A l l E m p l o y e e s )
• Encourage reporting –The tone should convey that:
– The employer takes harassment seriously;
– Harassment will not be tolerated;
– Reporting is welcome, because the employer wants to know
about harassment so that it can be corrected; and
– Reporting is safe – the employer also takes retaliation very
seriously.

33. T r a i n i n g C o n t e n t ( A l l E m p l o y e e s )
• Consequences:
– Liability for the employer;
– A bad work environment for everyone;
– Extraordinarily harmful to the victims;
– Losing employees who quit to escape harassment; and
– Potentially bad publicity/harm to reputation of everyone
involved.

34. T r a i n i n g C o n t e n t ( S u p e r v i s o r s )
• Supervisors are the employer’s agents – they act on behalf of the
employer.
• Supervisors therefore have an obligation not only to refrain from
harassing employees, but to address harassment.
• Cover defenses (see above).
• Supervisors must engage with the appropriate personnel to address
harassment (e.g., Human Resources).
• Some state laws impose personal liability (ex. Pennsylvania).
• Consensual relationships are not harassment but explain issues of
power dynamics in the context of supervisor-subordinate
relationships.
• Emphasize non-retaliation and importance of providing the anti-
retaliation when appropriate.

35. D o c u m e n t a t i o n
• Attendance sheets – document who has received the training and on
what date;
• Bring copies of the handbook/policies to distribute (or do so
electronically and retain copy of the email); and
• Acknowledgment forms:
– Attended full training;
– Received the harassment, discrimination, and retaliation
policies;
– Had an opportunity to ask questions;
– Understand their obligation to comply with the policies.

36. T h a n k Y o u f o r
P a r t i c i p a t i n g
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