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.