By Leonard T. Bier, CAPP, JD; and Michael J. Ash, Esq.

TOWARD THE END OF 2017, a wave of high-profile media personalities resigned amid investigations into accusations of sexual harassment and inappropriate workplace behavior. This trend is expected to continue this year and reach into all employment sectors. It is important for public and private parking managers to review their existing protocols for handling sexual ha­rassment accusations to ensure such situations will be handled quickly and fairly while limiting legal exposure.

What Is Sexual Harassment?
The United States Equal Employment Opportunity Commission (EEOC) is a federal agency that administers and enforces civil rights laws against work­place discrimination. EEOC guidelines specifically provide that harassment constitutes “verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of [the employee’s protected class,]” “has the purpose or effect of creating an intimidating, hostile, or offensive work environment,” “has the purpose or effect of unreasonably interfering with an individual’s work performance,” includes “epithets, slurs, negative ste­reotyping, or threatening, intimidating or hostile acts, that relate to … disability,” and “written or graphic material that denigrates or shows hostility or aversion toward an individual or group because of [the employee’s protected class] and that is placed on walls, bulletin boards, or elsewhere in the employer’s premises or circulated in the workplace.” 29 C.F.R. §1609.1(b).

Many cases have interpreted indi­vidual state laws against discrimina­tion, clarifying the general criteria in proving whether sexual harassment can be established to find an employer liable. Courts have specifically held that a plaintiff in a sexual harassment action must demonstrate that the complained-of conduct would not have occurred but for the employee’s gender and was severe or pervasive enough to make a reasonable woman believe that the conditions of employment are altered and the working environment is hostile or abusive. An employer may be strictly liable for equitable damages (e.g., back pay, promotions, reinstatement) for sexual harassment committed by a supervisor. Agency principals apply to determine whether an employer may be responsible for compensatory damages (e.g., damages for emotional distress).

Liability for Sexual Harassment
In order for a plaintiff to succeed in proving a hostile work environment, he or she must present a full and com­plete depiction of the work environ­ment which, when viewed as a whole, presents an image that is intimidating and hostile. State and federal courts recognize that testimony by employees about discriminatory actions by the defendant-employer similar to those alleged by the plaintiff are admissible to prove the employer’s motive or intent to discriminate. An employer is subject to vicarious liability to a victimized employ­ee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. In such circumstances, the employer is strictly liable for tangible job consequences resulting from the supervisor’s actions.

Suggestions for Employers
An employer must maintain a compre­hensive written anti-harassment and discrimination policy that informs its employees that unlawful harassment and discrimination will not be tolerated. The written anti-harassment or dis­crimination policy must also inform em­ployees how and to whom they should bring their complaints. In its Model EEO Program, the EEOC set forth the follow­ing minimum guidelines of what must be included in an anti-harassment policy:
• A clear explanation of what consti­tutes prohibited conduct.
• A statement of assurance that em­ployees who complain of harassment or provide information relating to complaints of harassment will not be retaliated against.
• A clear description of the complaint process.
• A statement of assurance that the employer will keep complaints of harassment confidential to the extent possible.
• A complaint process that states the employer will investigate complaints of harassment promptly, thoroughly, and impartially.
• A statement of assurance that the employer will take immediate and appropriate corrective action when harassment has occurred.

Employers should provide periodic training to supervisors and managers concerning their responsibilities regard­ing the employer’s anti-harassment and anti-discrimination policy. The training should, at minimum, provide the super­visors and managers the types of con­duct that will violate the anti-harass­ment and discrimination policy, the seri­ousness of the employer’s policy against harassment and discrimination, the duties and responsibilities of the super­visors if they learn of allegations of ha­rassment and discrimination, and a clear prohibition against retaliation for making complaints or participating in a harass­ment or discrimination investigation.

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LEONARD T. BIER, CAPP, JD, is the principal of Bier Associates. He can be reached at or 732.828.8866.
MICHAEL J. ASH, Esq., is a partner with Decotiis, Fitzpatrick, & Cole, LLP. He can be reached at