Limiting Employer Liability in Harassment Situations

By Frank Thompson on Oct 02 in Bonding.

The propane marketer was visiting with his insurance agent when the topic of sexual harassment arose. After trading some war stories about cases that they have heard or read about, the marketer ask the question whether or not his general liability policy would cover him in the event of a sexual harassment lawsuit. The agent responds NO. Sexual harassment, failure to promote, wrongful termination, discrimination, breach of employment contract, negligent evaluation, deprivation of career opportunity, wrongful infliction of emotional distress are all excluded under the general liability policy.

The marketer then asked if there was any insurance available to protect his company, and with a smile the agent brought out a four page application and said “I thought you would never ask.” You need to buy an Employment Related Practices Liability Policy. And with a sigh of relief the marketer bought the policy, threw it in his filing cabinet and never gave his workplace environment another thought until one of his employees came to him and gave him her resignation.

The female employee was very agitated when she gave him her reason for quitting. In the small office space where she worked a male supervisor began looking at pornography on his computer. His computer was easily visible by several other female employees. They complained to him about the visibility of the pornography and so he began using one of the female employee’s computer and leaving the pornography on when he got up to visit with a customer. The female employee told her husband and he demanded that she quit and see a lawyer.

Cases like the above scenario demonstrate how crucial it is for employers to do more that buy an EPLI policy. Marketers need to understand the basic concept of harassment. Including what it is and how to take measures to prevent its happening, as well as providing the mechanism for promptly and thoroughly responding when a complaint of harassment arises.

In the next three issues of the Gaslight we want to look at Policies and Procedures to create a harassment free workplace, second, determine what questions and issues should be asked of the complaining employee. And thirdly, questions and issues that should be addressed to the alleged harassing employee and other witnesses, and finally a course of action. The majority of the information was gleaned from publications written by Erin E. Byrnes and Barry H. Uhrman, attorneys at Jones, Skelton and Hochuli, a well known Phoenix attorney firm specializing in employment liability and used by permission by this author.

The following are detailed recommendations that all marketer should follow to create a workplace free from harassment:
• Adopt a strong harassment policy that clearly and plainly defines “harassment” and provides examples of verbal, nonverbal, physical and visual harassment that will not be tolerated.
• Spell out a complaint procedure that encourages employees to come forward by prohibiting any retaliation against an employee for reporting harassment or for participating in an investigation.
• Emphasize the importance of immediately reporting any concerns or complaints whether an employee is a potential victim or witnessed a potential harassing event.
• The policy should warn employees regarding possible consequences and punishment for employees who are found to have engaged in any form of harassment or who have violated company policies or procedures.
• The policy should outline a grievance procedure. The employee must contact a supervisor, human resources representative, or the partner/company officer or owner to report the harassment. The person to contact should be identified with the contact information. When reviewing the grievance procedure you should also list who to contact to bypass a supervisor, in case the supervisor is the alleged harasser.
• Provide assurances of prompt, thorough and objective investigation.
• Try to maintain confidentiality, but do not promise it. Explain why complaints can not be completely confidential, as a thorough investigation will require interviewing the alleged harasser.
• The written policy on harassment needs to be communicated to all employees by verbally and in writing.
• The written harassment policy should be prominently displayed in break rooms and work areas.
• Management should obtain a signed acknowledgement from each employee that they have read and understood the prohibition against harassment as well as the complaint procedure.
• The harassment policy needs to be given to all new employees on their date of hire or a part of their employee training
Marketers need to be consistent in conducting a prompt and thorough investigation of any alleged harassment. The written procedures need to be vigorously enforced and continually updated to reflect current changes in the law.

by Frank B. Thompson, CPCU
President PT Risk Management

Frank Thompson

Frank B. Thompson is a chartered property and casualty underwriter based in Phoenix. He is the owner of PT Risk Management, an independent insurance company specializing in writing propane and petroleum risk policies throughout the U.S.