An Ounce of Prevention: Training and Policies Can Help Stop Sexual Harassment Before It Starts and Could Limit Your Company’s Exposure If It Does Happen.

April 14, 2006

Valentino’s Restaurant, located in the Venetian Hotel & Casino in Las Vegas, Nevada recently learned a hard lesson regarding the importance of conducting regular training of its employees on recognizing and preventing sexual harassment and of maintaining well-written and current anti-harassment policies. 

Recently, the Los Angeles District Office of the Equal Employment Opportunity Commission (EEOC) filed a class action lawsuit against Valentino’s alleging that supervisors at the restaurant subjected female hostesses and food servers to sexual harassment so severe that two of the women were forced to quit their jobs in order to escape it.

According to the lawsuit, the supervisors’ conduct included unwanted sexual touching, sexual propositioning, and derogatory sexual statements about women to customers.  Specifically, the women alleged that the restaurant’s supervisors repeatedly groped and propositioned them and made sexual remarks to them from 2001 to March 2003. 

In October 2005, after going through a great deal of costly litigation, Valentino’s settled the lawsuit with the EEOC by entering into a three year consent decree.  As part of the settlement, the restaurant agreed to pay $600,000 in damages to the class members.  The monetary settlement was divided among the five employees named in the lawsuit, with a portion of the settlement monies being reserved for a currently unknown number of female victims who have yet to come forward.

The settlement also requires Valentino’s to designate or retain an EEOC consultant to implement and monitor its compliance with the federal laws prohibiting sexual harassment and gender discrimination and the consent decree.  In addition, the settlement includes a number of anti-discrimination training obligations, recordkeeping requirements and reporting obligations to be monitored by the EEOC for the next three years.   

Valentino’s will also have to create and implement discrimination, harassment, and retaliation policies, implement a tracking system and follow-up system for discrimination, harassment, and retaliation complaints.  Finally, Valentino’s supervisors and managerial employees must also have a clear and comprehensive description of their specific responsibilities for when they witness or learn of discriminatory conduct.  This includes training them in sexual harassment and revising evaluation forms to include measures for performance compliance with Valentino’s new discrimination, harassment, and retaliation policies and procedures.

While Valentino’s was in an unenviable position of being forced to pay $600,000, implement training and draft policies to settle the EEOC’s lawsuit, had the restaurant had both the training and policies in place prior to the suit, those measures could have helped it limit its liability or prevent the lawsuit in the first place.  In fact, all employers should normally implement these measures.  All employers should hold harassment prevention training at the very least once a year – preferably every six months.  In addition, all employers should have a written harassment policy in place, along with reporting procedures for any employee who feels that he or she has been subjected to or witnessed harassment, discrimination or retaliation.  Policies should also be periodically reviewed to determine if changes need to be made and to ensure employees are complying with the policies.

There are several reasons for implementing these measures.  One obvious benefit of training sessions and written policies dealing with sexual harassment is that they help to prevent the conduct that resulted in the EEOC’s class action lawsuit against Valentino’s.  However, there is an additional, less obvious benefit to implementing training and drafting policies.  By taking these steps to prevent sexual harassment, employers can limit their exposure if they are ever subjected to a sexual harassment lawsuit. 

Exposure can be limited in two ways.  First, the courts hold that employers are not liable for punitive damages if they make “a good faith effort” to comply with federal law.  That an employer acted in “good faith“ can be established by demonstrating that the employer had a widely disseminated anti-discrimination policy and that the employer conducted periodic harassment prevention training for all of its employees.  The policy should include a reporting procedure for any employee who feels that he or she has been subjected to or witnessed harassment.  Second, employers can defend themselves against sexual harassment allegations made against supervisors if the employer can prove that it took reasonable measures to prevent sexual harassment.  What would these “reasonable measures” include?  Once again, they include implementing training and drafting policies designed to prevent harassment.

If your company does not conduct regular training of its employees on sexual harassment or does not have a current policy prohibiting sexual harassment, both are measures that should be considered.  The benefits of having training and policies in place far outweigh the cost associated with implementing them.