Sexual harassment is not often thought about in the context of community association law. The reality, however, is that the number of sexual harassment claims brought against community associations has skyrocketed in recent years, making it imperative that a community association know everything it can about the law to shield itself from these types of claims.
Assuming that an association has fifteen or more employees, it will be subject to the anti- harassment provisions contained in Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992. In fact, a community association may be held liable for the sexual harassment actions not only of its employees but also its board of directors. The same applies to certain outside contractors and vendors, especially when an association’s board of directors is aware of the harassment and fails to remedy the prohibited conduct.
Based on the foregoing, nipping sexual harassment issues in the bud should be of paramount concern for all community associations. The most important action that an association employer can take to prevent sexual harassment and minimize liability is the formulation and implementation of a comprehensive sexual harassment policy. The existence of a strong anti-harassment policy can serve as a defense to most sexual harassment claims.
An Association’s Sexual Harassment Policy Should Contain, at a Minimum, the Following:
- An express prohibition against sexual harassment. In order to be clear, the policy should provide examples of behavior which may constitute harassment and specify that it applies to ALL association employees and board of directors;
- An unequivocal provision which states that any behavior found to be in violation of the policy will result in disciplinary action, including possible employee termination;
- A clear procedure by which complaints of sexual harassment will be addressed, specifically designating the individual to whom a complaint should be reported;
- An assurance that a person filing a harassment complaint will not be penalized, nor retaliated against, for bringing complaints in good faith;
- A promise that the complaint of sexual harassment will be kept confidential, to the extent possible. It is not advisable to ensure absolute confidentiality because an association may have to release some information during the complaint investigation process; and
- A statement which stresses the association’s ongoing commitment to maintaining a harassment-free workplace and community.
The Policy Should Be Routinely Disseminated To All Employees And Board Of Directors By:
- Distributing the policy to all new employees at the time of hire and to all board members at the beginning of each term;
- Re-distributing the policy at least once a year to emphasize its importance;
- Posting the policy in various locations throughout the workplace and the common elements of the community; and
- Placing the ANTI-HARASSMENT policy in all employee handbooks and board of director manuals.
- The sexual harassment policy should also be made known to any individual who regularly does business in the association’s facilities, or frequently comes into contact with any association employee or board of director.
Preventive Anti-Harassment Training
After an anti-harassment policy is formulated and disseminated, the association should verbally communicate the policy, on a regular basis, to all employees and board of directors. As such, it is suggested that the policy be read and explained in group meetings. Training should be interactive, so that employees can get clarity about what is considered prohibited conduct. Managers and supervisors should also be trained on how to enforce the policy. Training should cover management’s role in setting the tone for a sexual harassment-free environment. It is crucial that such training sessions be updated as warranted and that accurate records regarding training measures be kept.
Correcting Sexual Harassment Issues
An association’s duty in the sexual harassment context includes taking immediate action to respond to, investigate, and resolve claims of harassing conduct. An association should adequately respond to a complaint no matter how it learns of the problem, thoroughly documenting its investigation along the way. The association should try to obtain all relevant information, including the accounts of witnesses and other parties.
Throughout any investigation process, the association should strive towards confidentiality, whenever possible, as publicizing such to a third party could result in further legal ramifications. Moreover, preserving the confidentiality of an investigation will encourage employees to utilize the association’s complaint procedure rather than obtain outside assistance. Maintaining confidentiality can also lessens the financial burden which usually flows from sexual harassment claims.
The Bottom Line
Sexual harassment in the community association workplace harms not only the affected employees, but also the association as a whole. Harassment may lead to lower employee morale, even among employees who are not directly affected. Further damage is done when sexual harassment claims become public knowledge, as such exposure can lead to a decrease in the overall property value of the community. Additionally, some community associations have had to file for bankruptcy because of substantial sexual harassment verdicts. Implementing procedures to prevent and remedy sexual harassment claims is the best way to avoid such issues.