In Faragher v. City of Boca Raton, the plaintiff, a former ocean lifeguard for the City of Boca Raton, claimed that two of her supervisors harassed her by repeatedly subjecting her and other female lifeguards to uninvited and offensive touching, lewd remarks and offensive terms. The plaintiff never complained to higher management about her supervisors or the alleged sexual misconduct.
In the companion case, Burlington Industries Inc. v. Ellerth, the plaintiff, a marketing representative for Burlington Industries in Chicago, alleged that her supervisor, a mid-level manager in New York, made unwelcome and threatening sexual advances. The unwelcome and threatening sexual advances consisted not only of "boorish and offensive remarks and gestures", but also comments that "could be construed as threats to deny plaintiff tangible job benefits." Although the plaintiff refused her supervisor's sexual advancements, she never suffered an adverse, tangible job consequence.
According to the Supreme Court's rulings in both Faragher and Burlington, employers are automatically responsible for any harassment by a supervisor (or successively higher supervisor) that leads to a tangible job consequence, e.g. termination, demotion, failure to hire, failure to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits. For the purposes of Title VII, a tangible employment action taken by the supervisor becomes the act of the employer.
In cases in which a tangible job consequence does not ultimately result, the employer may still be held liable for harassment by a supervisor with immediate (or higher) authority over the victimized employee. Where there is no tangible job consequence, however, the employer may defend itself by proving that it took reasonable steps to prevent harassment on the job. To prove that an employer took reasonable steps to prevent harassment on the job, an employer must satisfy a two-part test. The employer must show: (1) that it used "reasonable care" to prevent and promptly correct any sexually harassing behavior, and (2) that the victim employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.
Relevant to whether an employer used reasonable care to prevent and promptly correct any sexually harassing behavior is whether the employer had a stated policy suitable to the employment circumstances. An employer will normally satisfy its burden to prove that the victim employee unreasonably failed to prevent or correct the harm by demonstrating that the employee failed to take advantage of adequate complaint procedures provided by the employer.
In Faragher, the Supreme Court held that the City of Boca Raton could not prove that it exercised reasonable care to prevent the supervisors' harassing conduct because the City failed to disseminate its policy against sexual harassment among the remote employees; that its officials made no attempt to monitor the conduct of the remote supervisors; and, because the City's policy did not include an assurance that the harassing supervisors could be bypassed in lodging complaints. To exercise reasonable care to prevent a supervisor's harassing conduct, a City, like a large corporation with many departments in remote locations, must communicate a formal policy against harassment with a sensible complaint procedure.
Accordingly, to avoid liability for a supervisor's sexual harassment in light of these recent decisions, an employer should have an adequate anti-harassment policy that sufficiently communicates an internal complaint procedure. The policy and complaint procedure must be disseminated among employees of all levels and at all locations. And, an employer must be able to prove that each individual employee received a copy of the policy and understood the procedure by which to file a complaint pursuant to that policy. For this reason, a signed acknowledgment form should be obtained from each employee.