Although there has been progress in recognizing, addressing and preventing sexual harassment in Colorado workplaces, it still happens. There are laws in place to protect workers from this behavior and give them options to seek compensation if it negatively impacted them professionally and personally.
However, when considering a legal case, it is important to understand what type of defense the employer might use to avoid liability. This can be a crucial part of the case. In cases where employers make this assertion, it becomes even more important to have assistance with the entire claim.
What constitutes an affirmative defense for sexual harassment?
If an employee says that they were a victim of sexual harassment, the employer can use an affirmative defense to fight the case. There are tenets to this being an effective strategy. According to the law, the employer must have taken preventative steps beforehand.
A key for this defense is that the employer must have put a program in effect that was designed to stop harassment, keep others from committing harassment, and to shield employees from being harassed.
If the employer was informed of sexual harassment in the workplace, they must have taken steps to address it by giving the employee a process under which they can report the behavior and seek an acceptable resolution.
Most workplaces now have programs that will educate employees as to what behavior is acceptable and what is not. They will also inform employees as to the steps they may take when they believe they are being harassed. Generally, that includes a reporting process where they will tell a supervisor so the claim can be fully investigated.
Employers cannot use affirmative defense if the harassment resulted in adverse employment actions. If, for example, the person who claims they were sexually harassed was terminated or demoted, it eliminates affirmative defense and it does not matter what policies the employer might have had in place. If the employer does not meet all the criteria necessary, then there cannot be an affirmative defense.
Workers should be fully prepared for a sexual harassment claim
Since sexual harassment claims can be so problematic for employers, they are going to do whatever possible to combat the charges. That might include an affirmative defense. Often, the necessary measures were not implemented correctly or the employer did not take the proper steps after the claim was made. From the start, it is wise for a victim of sexual harassment to have professional help to gather evidence and move forward with a case.