US Supreme Court's Announces Strong Position Against Sexual Harassment

by Joseph C. Maya on Mar. 31, 2017

Employment Sexual Harassment Civil & Human Rights  Civil Rights 

Summary: Blog post on the Supreme Court's strong stance against sexual harassment.

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The United States Supreme Court recently issued two decisions in the area of sexual harassment. These cases discussed the standard of liability imposed on employers for supervisory sexual harassment that creates a hostile working environment. In addition to making page one of most newspapers, these latest decisions became the cover articles on several magazines. The spin put on these cases by the media seems to indicate that all sides are claiming victory, and that employers were getting the guidance they needed to avoid liability. This is not entirely true. While it is accurate to state that employers now have a more solid road map regarding what they must do to avoid liability in the workplace, if anything, these decisions will increase the likelihood of employer liability in the area of sexual harassment. As a result, all employers need to review their sexual harassment policy, and especially the means of disseminating their policy to employees.

In Faragher v. City of Boca Raton, a part-time female lifeguard sued her employer, the City of Boca Raton, alleging that she and other female lifeguards had been subjected to lewd and disparaging remarks and offensive touching. Faragher spoke informally to one of the city's supervisors about the conduct, but the supervisor never reported the conduct to any other city official. Faragher failed to complain to any member of higher management. Although, the City had a sexual harassment policy, it was not distributed to all employees.

In Burlington Industries, Inc. v. Ellerth, a female salesperson claimed she quit her employment after 15 months due to a male supervisor's constant sexually harassing conduct. Ellerth alleged that her supervisor repeatedly made boorish and offensive comments and gestures and threatened to deny her job benefits. The supervisor never carried out his threats, nor did Ellerth suffer any tangible adverse action in response to her rejection of her supervisor's advances. In fact, Ellerth received a promotion. Ellerth failed to report her supervisor's conduct, despite her knowledge of her employer's policy against sexual harassment.

In both Faragher and Ellerth, the lower courts found that there was actionable sexual harassment by a supervisor that was severe or pervasive. In both cases, the Supreme Court imposed the more severe standard of vicarious liability on an employer for a "hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." (Vicarious liability is liability of an employer for the acts committed by an employee.) Prior to these recent decisions, the Courts had applied a less severe standard of liability on an employer, only where the employee proved that an actionable sexual harassment occurred and the employer knew or should have known of the harassment, but failed to take prompt and effective remedial action. The obvious message here is to act quickly and appropriately on complaints before conduct becomes "severe or pervasive" since employer liability will be likely if misconduct rises to this point.

Indeed, in both of these cases, the defendants had sexual harassment policies. In Faragher's case, her complaint was promptly investigated and disciplinary action was taken against the supervisors as soon as higher management learned of her complaints. Ellerth never made any complaints, but quit over an unrelated issue, and only several weeks after her resignation wrote a letter of complaint.

The Supreme Court held that an employer can be liable for the sexual harassment by a supervisor that causes a hostile work environment, even though the employer did not know about the harassment, and where the harassment was not within the scope of the supervisor's job, and against policy. The Court held that in this day and age it is proper to conclude that sexual harassment is one of the normal risks of doing business that an employer should bear. The holding of these cases is that an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.

The Supreme Court further ruled that an employer may escape vicarious liability by raising an affirmative defense to liability or damages. This is a new defense that the court created that comprises two elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. The employer has the burden of proof on these elements. Formerly, this burden was on the employee.

Presumably, if one or both of the above elements are not present, the employer will be liable. If one or both elements are at issue, the employee will get a trial. An employer will only prevail if it meets its burden of proof on both elements of the affirmative defense. Moreover, this affirmative defense is not available when the supervisor's harassment culminates in a tangible employment action, like a discharge or promotion denial. In such cases, the employer will be strictly liable based upon theories of quid pro quosexual harassment.

Even though the Court indicated that it was not absolutely necessary for an employer to have an anti-sexual harassment policy, it is likely that an employer would probably be liable if it did not. Therefore, it is necessary to have a strong sexual harassment policy which applies to all employees. The sexual harassment policy must contain a grievance procedure that states the victim may bypass the harassing supervisor, and go to anyone in management or human resources. Ms. Ellerth defended her failure to use the company policy by claiming she would have had to go to her supervisor who would have had to in turn report her complaint to the harassing supervisor.

As a result of these decisions, dissemination of your policy is critical. In Faragher, the Supreme Court jumped on the fact that the employer had entirely failed to disseminate its policy. Make sure your policy is posted in every building, every breakroom, and every department bulletin board. Dissemination of the policy to every employee is as important as the policy itself. Provide all new employees and supervisors with a copy of it.

In addition, the Supreme Court criticized the City of Boca Raton for making no attempts to keep track of the conduct of supervisors. Therefore, monitor compliance with your policy by, for example, amending your performance appraisals to include a statement that the employee/supervisor is aware of and committed to the employer's EEO policy, including its policy on sexual harassment. Furthermore, it will be necessary to conduct periodic training of all supervisors on sexual harassment. If you receive a complaint of sexual harassment, conduct a prompt investigation and take remedial action to put an end to any sexually harassing conduct in order to preserve your affirmative defense.

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