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The Supreme Court’s 1998 decisions in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton clarified the law on workplace sexual harassment and provided the basis for modern workplace policies dealing with that issue.
But as the 2nd Circuit’s recent ruling in Duch v. Jakubek demonstrates, employers and in-house counsel would be well-advised to revisit their policies and training programs from time to time. The decision underscored the obligation of supervisors to pursue any employee complaints of sexual harassment, even if the person complaining doesn’t want to provide details of the harassment and doesn’t file a formal complaint.
“I think sending out a renewed policy statement at the beginning of the year is a great, low-cost way for employers to raise awareness of the issues,” says Daniel Schwartz, a member at Pullman & Conley.
Richard Block, a member at Mintz Levin, contends that written policies aren’t enough.
“The important point of this decision is that employers need to train their supervisors that, in harassment cases, they are the employer,” he says. “And given that they are the employer, there are certain behaviors that they have to follow at work.” Those include investigating any complaint or suggestion that sexual harassment might be occurring.
Block emphasizes that the training must be ongoing.
“You need to have periodic discussions of the topic,” he says. “And I don’t think enough companies take the time to do that.”