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“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

Sexual Harassment Is A Pervasive Problem: Employers Need Policies, Training to Prevent and a Good Employer’s Liability Insurance Policy

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Sexual Harassment Is A Pervasive Problem:  Employers Need Policies, Training to Prevent and a Good Employer’s Liability Insurance Policy

By now most of Illinois, if not beyond, is aware that yet another major celebrity (this time a famous Chicago radio host), has been accused of sexual harassment in court pleadings. It has been years since the Me Too movement began, and stories still arise about sexual harassment in the workplace. Still!

This should be a wakeup call to all employers. This is not just an HR problem. This is a widespread company problem.

Employers should be doing three things to identify, prevent, and remedy sexual harassment problems:

  • have a sexual harassment policy in place;
  • have training on sexual harassment prevention; and
  • have an employer’s liability protection policy for when this happens.

Sexual Harassment Policy

You should not rely on policies drafted in the 1980s to prevent sexual harassment and protect your employees in the workplace.

It is not enough for an employer to simply rely upon a policy which states that “this employer does not tolerate sexual harassment.” An employer should have a specific policy regarding what is prohibited and how to report sexual harassment when it occurs. Depending on whether you are a private, state or federal employer, your policy may consist of only one page, or it may be six pages long. In Illinois, there are additional requirements based on the type of employer you are, and whether your company has state contracts.

Sexual Harassment Prevention Training

You should have sexual harassment prevention training for all employees, including management, as well as any independent contractors or service people who are routinely on your premises, or are retained to interface with your employees.

In Illinois, yearly sexual harassment prevention training is mandatory. Yet, small to medium businesses still are not on board with this mandate. Some believe it is sufficient to post the rules or have outside training for licensing provided. It probably is not. Training needs to be specific to your company.

Even if your state does not mandate sexual harassment training, it is still a good idea to hold sexual harassment prevention training; it may better inform employees about what is permitted and what is not, and lead to intervention before a claim is filed before the Human Rights Commission, EEOC, or the Courts.

Sexual Harassment Insurance Coverage

The best employment policies and training will not prevent all sexual harassment. Most, if not all, harassers know what they are doing and somehow justify it. Admittedly, insurance coverage is tricky. Employers generally have workers’ compensation and commercial general liability coverage, but these types of coverage do not always protect against claims of sexual harassment. Many policies specifically exclude acts involving claims of sexual assault and battery, which may encompass sexual harassment, or exclude sexual claims altogether. It is worth the extra time (and money) to meet with your insurance agent to determine if the policies you have in place protect your business/company against claims before the State’s Human Rights Commission or the EEOC, as well as lawsuits.

It is terrible for an employer to realize that there is sexual harassment going on in their workplace, but it is worse for an employer to realize they could have done more to prevent it, or at least provided their employees with the tools to complain internally before the situation becomes more serious.

As an employment and coverage attorney with McKenna Storer for more than 20 years advising and representing companies, I can say with certainty that this has always been a problem in the workplace but, until recently, has primarily been a private problem. The lawsuits are going to continue to come and grow, and the consequences will be much more public. If you need help drafting policies, training employees and management, or have an ongoing sexual harassment situation in the workplace and need advice, please contact Kristin Tauras at McKenna Storer.

Kristin Tauras can be reached at ktauras@mckenna-law.com

Categories Employment Law General Litigation Legal Updates



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