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On June 26, 1998, the United States Supreme Court issued two long-awaited
decisions addressing the scope of employer liability for sexual harassment
engaged in by supervisors. Both cases, Burlington Indus. v. Ellerith and
Faragher v. City of Boca Raton involved claims by employees that they
had been subjected to a hostile work environment created by their supervisors.
The issue before the Court in both cases was under what circumstances
the employer could be held liable for supervisory sexual harassment, as
opposed to sexual harassment engaged in by a coworker.
The Court held in those cases that an employer is liable for actionable
sexual harassment caused by a supervisor with "immediate (or successively
higher) authority over the employee." However, in cases where the
employee does not suffer a "tangible employment action," such
as discharge, demotion, or an unfavorable reassignment, the Court created
an affirmative defense that an employer may raise to avoid liability and
damages. This affirmative defense requires the employer to prove the following
two elements:
- That the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior; and
- That the plaintiff-employee unreasonably failed to take advantage
of any preventive or corrective opportunities provided by the employer
or to avoid harm otherwise
Because this defense recognized by the Court is ‘affirmative,' the employer
now has the burden of proving both elements by a preponderance of the
evidence before being relieved of liability.
Again, however, this affirmative defense is not available in all situations.
With respect to quid pro quo sexual harassment, where employment benefits
are conditioned upon an employee's submission to sexual demands, the Court
held that the employer is strictly liable, if the supervisor's threat
results in actual adverse employment action to the employee. If, on the
other hand, the supervisor merely threatens adverse action but does not
follow through with it or engages in other types of sexually harassing
behavior, then the employer may be able to take advantage of the affirmative
defense.
Policy and Training Essential
According to the Court, whether an employer has an anti-harassment policy
is relevant evidence with respect to the first element of the affirmative
defense. Thus, having a clear and well-communicated sexual harassment
policy is virtually mandatory if an employer wishes to successfully defend
against a sexual harassment claim. Also important is effective screening
and training of supervisor's employees. Because supervisory training will
demonstrate an employer's effort to prevent harassment, all employers
are advised to engage in that training now and to do so regularly so that
all supervisors receive the same message. In order to take full advantage
of the affirmative defense created by the Supreme Court, employers must
include as part of their sexual harassment policy procedures for employees
to report sexual harassment complaints to officials outside their normal
chain of command. In addition, an employer must also conduct a prompt
and thorough investigation of any harassment claims that are made and
respond in an effective manner in order to be protected.
With these two decisions and the Supreme Court's decision earlier this
term recognizing "same sex" harassment, the likelihood is that
sexual harassment cases will continue to be filed at an increasing pace.
As a result, prudent employers should have an anti-harassment policy in
place that meets the Supreme Court's standards and should engage in regular
supervisory training on this issue. As the employers in those two cases
will attest, this is definitely not a "back-burner" issue.
Reprint Courtesy of Ice, Miller, Donadio, & Ryan.
The Informed Employer®, July 1998.
Originally published in the 1998 Fall issue
of The CampLine.
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