Harassment – Test to Determine Who’s Liable

According to the 4th Circuit Court of Appeals, an employer has to pass a three-pronged test to avoid liability for harassment.

Factor 1

  • Did the supervisor’s harassment result in a substantial employment action? If so, the employer is liable

If no substantial employment action was taken…

Factor 2

  • The employer exercised reasonable care to prevent and correct any harassing behavior AND

Factor 3

  • The employee unreasonably failed to take advantage of the preventive or corrective opportunities the employer provided

Remember, if you or should have known, you have a duty to report and/or take action and investigate.

HRMorning.com, “She never reported harassment:  A 3-Factor test determined who’s liable”, by Christian Schappel, February 3, 2016

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