On June 25, 1998, the U.S. Supreme Court issued two opinions on the subject of sexual harassment in the workplace which should compel employers to take a serious look at their sexual harassment policies and procedures. Specifically, the Supreme Court ruled that an employer can be found liable in certain situations for sexual harassment committed by a supervisor, even if the employer knew nothing about the harassment. Because school districts are employers, often with large numbers of employees within a variety of positions and settings, the holdings in these cases warrant a close review by district officials.
The first case, Burlington Industries, Inc. v. Ellerth, involved a female salesperson who had been employed by one of Burlington's many divisions. According to Ellerth, one of her supervisors touched her inappropriately and made unwelcome comments about her anatomy and appearance. The supervisor also told her to loosen up, warned that he could make Ellerth's life very hard or very easy, and suggested to her that wearing shorter skirts would make her job a lot easier. Ellerth never reported the conduct, even though she was aware of Burlington's sexual harassment policy. She resigned after 15 months on the job, giving reasons unrelated to her supervisor's conduct. Three weeks later, however, Ellerth sent a letter to Burlington explaining that she had resigned because of the sexual harassment. During her period of employment, Ellerth had received one promotion and had not been denied any tangible job benefits.
Ellerth filed suit in federal court in Illinois alleging that Burlington had violated Title VII of the Civil Rights Act, which prohibits discrimination on the basis of sex in the workplace. The district court ruled in favor of Burlington, finding that although the supervisor's conduct was severe and pervasive enough to amount to sexual harassment, Burlington neither knew nor should have known about the conduct. Specifically, the court found that Ellerth admittedly did not report the conduct to anyone nor did she invoke Burlington's sexual harassment complaint procedure. On appeal to the Sixth Circuit Court of Appeals, the appellate judges reversed, but could not reach consensus on the standard for liability. Burlington then petitioned the U.S. Supreme Court for review.
The second case, Faragher v. Boca Raton, involved a female lifeguard hired by the Marine Safety Section of the Parks and Recreation Department for the City of Boca Raton, Florida. According to Faragher, she and other female lifeguards were subjected to uninvited and offensive touching, lewd remarks, and offensive comments about women by two of Faragher's three male supervisors. Faragher never complained to higher management about her supervisors' conduct. However, she did tell the third supervisor, who took no action. The City had a sexual harassment policy, but had never disseminated the policy to employees of the Marine Safety Section. Faragher eventually resigned from her employment. Two months before Faragher resigned, another female lifeguard had written the City's Personnel Director complaining of the supervisors' behaviors. The City investigated the complaint and subsequently reprimanded both supervisors and required them to choose between a suspension without pay or forfeiture of annual leave.
Faragher filed suit in federal court alleging that the supervisors had created a "sexually hostile atmosphere" in violation of Title VII. The court found the City to be liable because the conduct was pervasive and the City had reason to know of the conduct, since Faragher had reported it to one supervisor. However, Faragher was awarded only $1.00 in nominal damages, plus costs and attorneys' fees. The City appealed to the Eleventh Circuit Court of Appeals, which reversed the lower court's judgment, in part because the City had no actual knowledge of the conduct. Faragher then petitioned to be heard by the U.S. Supreme Court.
The Supreme Court agreed to review both Ellerth and Faragher. In analyzing the employer liability question in these two cases, the Court focused on whether the employee suffered a tangible job detriment, such as termination, demotion, or denial of a promotion. Where such a job detriment did occur as a result of the employee's refusal to submit to the supervisor's demands, the Court concluded that the employer is automatically liable for the supervisor's conduct. In such cases, the employee does not have to show that the harassment was "severe or pervasive," and it makes no difference whether the employer had knowledge of the harassment or took any measures to prevent sexual harassment in the workplace. On the other hand, if no job detriment occurred, the Court reasoned that the employer may be liable for the harassment, as long as the employee can show that the harassment was severe or pervasive. However, the employer can avoid or at least reduce its liability by showing that: (1) it exercised reasonable care to prevent and promptly correct the sexual harassment, and (2) the employee unreasonably failed to take advantage of any complaint procedure provided by the employer, or to "otherwise avoid harm."
Applying this framework to Ellerth, the Court found that no job detriment occurred but that the conduct was severe and pervasive. As a result, Burlington would be liable for the supervisor's behavior unless Burlington could establish that Ellerth had unreasonably failed to pursue the company's complaint procedure. The case, therefore, was remanded to the lower court for a determination on this issue. In Faragher, the Court also concluded that no job detriment occurred but that the harassment was severe and pervasive. However, the City could not argue that it had exercised reasonable care to prevent sexual harassment, since its sexual harassment policy had not been properly disseminated. As a result, the court reinstated the lower court's ruling in favor of Faragher.
Like the Court's decision in Gebser v. Lago Vista Independent Sch. Dist., discussed in last month's "Issue of the Month," Ellerth and Faragher have the potential to greatly impact a school district's defense of sexual harassment allegations. Unlike the student harassment situation in Gebser, however, school districts, as employers, are potentially liable for harassment of employees by supervisors, even if district officials are unaware of the conduct. Therefore, it is imperative that school districts adopt, disseminate, and enforce comprehensive sexual harassment policies which outline specific procedures for disseminating information, training, filing complaints, conducting investigations, and implementing corrective action.