Despite the fact that it has been nearly a decade since the Supreme Court provided a two-prong affirmative defense for avoiding or limiting employer liability for sexual harassment in the workplace, claims and monetary awards have increased. The number of claims filed with the Equal Employment Opportunity Commission ("EEOC") based on violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), which protects individuals from discrimination and harassment due to race, color, sex, religion, and national origin, grew from 2,052 in 1986 to 14,273 in 2003.

Moreover, in 2005, the EEOC recovered approximately $101 million for Title VII discrimination violations, more than tripling the amount recovered in 2002. According to these statistics, claims continue to increase in numbers and, judging by the amount of money recovered, in severity.

With such explicit instruction established almost a decade ago in Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton, where are employers going wrong and why are the EEOC statistics so staggering?

In 1998, the Supreme Court provided that employers can avoid or limit damages (in the absence of a tangible employment action) when:

1. the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and
2. the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

The elements to the successful defense of discrimination claims, whether sexual harassment or some other form of harassment, remain, largely, the same. Whether involving race, color, sex, religion or national origin, employers would be wise to develop policy and responses as outlined by the Supreme Court in Ellerth and Faragher.

Employers, daily, expose themselves to liability by failing to implement, monitor and enforce their own policies and procedures. They fail to:

• institute effective (or any) discrimination and harassment policies;
• disseminate and educate employees about the policy;
• monitor and abide by established policies;
• train employees about discrimination and harassment; and
• take prompt remedial action when made aware of unlawful harassment.

So how can this discord be resolved?

Institute effective discrimination and harassment policies. An employer can exercise reasonable care to prevent harassment by creating and disseminating an anti-harassment policy. Depending on the specific situation, such a policy can include definitions and examples of harassment, descriptions of potential disciplinary measures, notice of a "zero tolerance" policy, the complaint procedure to be followed, and statements denouncing retaliation.

Additionally, such policies should identify the appropriate supervisory contact person(s), which should be as many as the organizational structure can permit. For example, the Eleventh Circuit approved of a policy that stated "any employee who feels he or she is being sexually harassed should immediately contact their line manager, Personnel Contact, or other manager with whom they feel comfortable." Essentially, any policy should teach victims of harassment how and when to come forward with complaints of harassment.

Disseminate and educate employees about the policy. An anti-harassment policy, regardless of how good it may be, is of absolutely no value if it is not provided, and fully explained, to all employees. Time must be taken to review the policy and to make sure that it is completely understood. Verifications of receipt and understanding should be obtained by the employer during this process.

Abide by established policies. Employers are routinely found liable for failing to abide by their own established policies. Policies must be followed consistently because evidence of an exception towards one person can easily be turned into evidence of discrimination towards another. An effective policy is one that is consistently adhered to in all situations - no exceptions.

Train employees, including managers and supervisors, about discrimination and harassment. Employers must make an effort to educate all employees about impermissible discrimination and harassment in the workplace and what to do when they see it. Without adequate training, even the best anti-harassment policies can fail.

Conscientious employers should especially train their employees to identify and address potentially hostile situations beyond overt harassment scenarios. This is because although oftentimes clear and obvious, actionable harassment may also be veiled and subtle. In today's multi-cultural society, with its diverse workplaces, discriminatory behavior may be so subtle as to exist undetected. More importantly, in diverse workplaces, many individuals are not even aware of their own insensitivities and hostilities because they lack the knowledge of how discrimination and harassment can manifest. Unintentional conduct can be every bit as harmful and actionable.

Training should also include instruction on the "known or should have known" theory of liability. In the case of co-worker harassment, an employer is directly liable if it knew or should have known of the severe or pervasive harassment but failed to take prompt remedial action. According to the courts, an employer "knew" of the harassment if actual notice was given, such as in the form of an employee complaint. An employer "should have known" about the harassment if the conduct was so severe or pervasive that management reasonably should have known the employee was being harassed, which is considered constructive notice. An effective anti-harassment policy can significantly reduce an employer's risk of liability under this theory of liability as well.

Take prompt remedial action when made aware of unlawful harassment. An employer can exercise reasonable care to promptly correct harassment by immediately taking remedial action. Unfortunately, it is impossible to establish a single corrective action with universal application. However, employers have an affirmative obligation to prevent violations of harassment laws, which means that employers must do whatever they reasonably can to immediately stop the harassment. It is as simple as that.

To a casual observer, the continued existence of successful harassment lawsuits seems ridiculous considering the not so subtle directions given by the courts over the years. What possible reason can an employer give for not heeding the advice? The most common are cost and effort. However, as in most situations, prevention is cheaper and easier than the cure, and employers would be wise to make the effort. Otherwise, the number of harassment claims will continue to rise.