Affirmative Defense

CONSIDER THESE FACTS: The most recent statistics:

  • Over 82,000 EEOC violations were filed
  • Over 24,000 sexual harassment and discrimination claims were filed
  • Over 30,000 racial discrimination charges were filed

In addition:

  • Attorney fees and settlement charges averaged over $180,000 per case
  • Many companies are one lawsuit away from being out of business
  • Employee lawsuits have risen 14% in each of the previous 10 years
  • EEOC regulations hold employers liable for employees being trained
  • Attorneys now regularly are able to “pierce the corporate veil” and go after the business owners personally.

How do you mitigate this risk?
Being able to demonstrate “affirmative defense” as outlined by the US Supreme Court – this addresses your training and testing programs as well as a mechanism for employees to report problems

In 1999, the United States Supreme Court provided employers with a “road map” to minimize liability in cases where employees sue employers. Their rulings in two cases, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, provide for Affirmative Defense if employers follow 3 steps:

  1. The employer must establish appropriate, understandable training systems guaranteeing comprehension and tracking of employee training experience. (Accomplished through ComplyAbility)
  2. A mechanism for employees to convey claims of rights violations had been adequately provided. (A Toll free number is included for employees’ and employers’ use.)
  3. Any such claims were remedied through appropriate actions initiated by the employer. (Our HR specialists will immediately notify your administrator of the telephone call to ensure prompt follow up)

In general, an employer is exempt from liability if they can prove that:

  • they have a policy
  • the trained their employee of the policy
  • the policy informs the employee what to do and who to notify in the event of a claim of harassment/discrimination
  • the employee actually received the information and understood it
  • the employee failed to adhere to the policy

ComplyAbility goes one step further to really help reduce your exposure. With your consent, we schedule a quarterly questionnaire on the system for all employees to fill out regarding whether they feel, or have ever felt, discriminated against or harassed at work. These quarterly questionnaires have often formed the basis for having claims dismissed.

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