Defending Against Workplace Harassment Claims

In harassment cases that do not involve harassment by a supervisor that resulted in a tangible employment action, an employer has a defense if it can prove two things:

1. The employer exercised reasonable care to prevent and promptly correct any harassment; and
2. The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to avoid harm otherwise.

The first prong of the test requires the employer to show that it took reasonable care to prevent and promptly correct any harassment. Simply having a policy is not enough; the policy must be implemented. Not having a formal policy will not necessarily defeat the defense if the employer exercised sufficient care through other means, but not having a policy makes it very difficult for an employer to show that it exercised reasonable care. Therefore, it is best to have a policy in place.