Protecting Your Organization From Expanding Workplace Harassment And Retaliation Liability

I. PREVENTIVE MEASURES DESIGNED TO AVOID OR LIMIT AN EMPLOYER'S LIABILITY FOR ITS EMPLOYEE'S HARASSMENT

A. An Effective Policy Statement

Several 1998 U.S. Supreme Court decisions emphasized that every employer MUST develop company policies on sexual and other forms of harassment. As part of the policy it should be stated that such behavior will not be tolerated, and shall serve as a basis for termination. Employees should be given the duty to report incidents of harassing behavior and be assured that retaliation will not be taken for making a good faith claim. Most importantly, once adopted, an employer must follow the policies. The Equal Employment Opportunity Commission's enforcement guidelines, issued in June 1999, which implement the 1998 Supreme Court decisions, set forth the elements of an effective policy and complaint provisions. These elements include:

1. A Clear Explanation Of Prohibited Conduct

A company's harassment policy should carry an unequivocal message: HARASSMENT SEXUAL, AND OTHERWISE, WILL NOT BE TOLERATED. IF YOU VIOLATE THIS POLICY, YOU COULD LOSE YOUR JOB! Of course, the message may be conveyed in different language, but the import of the policy should be unmistakable. The policy should refer to the standard EEOC definition of sexual harassment but should also contain examples of the types of real-life conduct which constitute harassment.

2. A Clearly Described Complaint Process That Provides Accessible Avenues Of Complaint

Above all, the policy should spell out the procedure to be followed by an employee who believes him or herself to be a victim of harassment and should provide a clear course of conduct for the aggrieved employee. Painstaking attention must be given to this section of the policy to be sure that employees are encouraged to come forward with complaints of harassment. Employers must also be careful to ensure that a balance is maintained between limiting the number of persons with knowledge of confidential information and providing to an employee who has been harassed by his or her supervisor a viable alternate course of complaint. Providing an alternative source of grievance of a person being harassed by his or her supervisor is of critical importance. For instance, in Meritor Savings Bank v. Vinson, 477 U.S. 57, 73 (1986), the U.S. Supreme Court criticized a policy in which an aggrieved employee was required to report sexual harassment to her supervisor, who was the alleged harasser. Often, the best way to guarantee that victims do not let matters "fester" is to allow for a designated and limited number of persons to whom complaints of harassment should be directed. These persons must be selected with care: employers should focus on persons in positions commanding respect, those who have displayed an ability to handle confidential matters appropriately, and those with strong interpersonal skills. To the extent possible, employers should consider persons at varying levels of supervision for these roles.

Employers also should be aware that the EEOC has taken the position that effective harassment policies should include information relating to the filing of harassment complaints with the EEOC and state employment practice agencies.

3. Confidentiality Of Assurance That Employers Will Protect The Harassment Complaints To The Extent Possible

Employers are frequently placed in a bind by employees complaining of harassment who request that the complaint be kept confidential. Agreeing to this request will usually prevent the employer from conducting an effective investigation into the allegations, or from taking any action at all to prevent the conduct from continuing. It is not recommended that employers make this concession, but it is critically important that any such complaints be treated with the highest degree of confidentiality. A federal appellate court refused to find liability on the part of an employer which did honor an employee's request to keep her complaint of sexual harassment confidential because the employer "behaved reasonably in honoring the plaintiff's request and in failing to take immediate action." Torres v. Pisano, 116 F.3d 625 (2nd Cir.), cert. denied, 1991 U.S. LEXIS 7113 (1997).

4. Assurance That Employees Who Make Complaints Of Harassment Or Provide Information Relating To Such Complaints Will Be Protected Against Retaliation

A hallmark of a well-drafted harassment policy is an unequivocal statement that retaliation against persons raising complaints of harassment is itself a violation of the policy, subject to discipline, up to and including termination. Retaliation against a person complaining of a violation of federal employment anti-discrimination laws is a specific violation of those laws, 42 U.S.C. 2000e-3(a), as is retaliation of those who provide information related to complaints of workplace harassment. Non-retaliation language is necessary to encourage victims of harassment to come forward, to strengthen an employer's defense of a hostile environment complaint, and to discourage violations of federal anti-discrimination laws.

5. A Complaint Process That Provides A Prompt, Thorough And Impartial Investigation

To avoid liability in a hostile environment harassment case, an employer must conduct an investigation which is prompt, thorough and undertaken in good faith.

a. Promptness Of Investigation

Although the courts have interpreted employers' duties under the laws prohibiting harassment to include prompt investigations, they have not provided specific guidance on this issue. In its 1999 guidance on the issue, the EEOC has stated that an investigation into a complaint of harassment should begin immediately. If management is made aware of an egregious act of harassment, appropriate action may include requiring the alleged harasser to shorten a business trip and return to the office immediately. In other cases, co-worker witnesses may be called in to work on a scheduled day off, in order to be interviewed. At all times, however, employers must temper a prompt response with discretion.

b. Thoroughness Of Investigation

To aid confidentiality and consistency, an employer should designate a single individual to direct the investigation. That person should have no ties to the persons who are involved in the incident(s) of harassment, and should be a person with strong interpersonal skills. The person should also have some experience in conducting investigations of this nature and should be a person of sufficient stature within the company such that non-cooperative witnesses (particularly alleged wrongdoers) cannot successfully intimidate the investigator.

In addition to the victim, the investigator should meet with the accused harasser, all eye witnesses to the incident, and any other persons with knowledge. Keeping in mind the necessity of confidentiality, the interviewer should consider asking non-specific questions of persons other than the victim and the accused. Notes of all interviews should be kept by the investigator and these notes, together with all documents relevant to the investigation, should be kept in a confidential file. Access to the file should be strictly on a "need-to-know" basis. When questioning witnesses, employers may look to the EEOC's enforcement guidance for samples of questions to ask of witnesses to alleged harassment and criteria to consider when judging credibility of witnesses. These materials are set forth below.

Questions to Ask the Complainant:

» Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
» How did you react?
» What response did you make when the incident(s) occurred or afterwards?
» How did the harassment affect you?
» Has your job been affected in any way?
» Are there any persons who have relevant information?
» Was anyone present when the alleged harassment occurred?
» Did you tell anyone about it?
» Did anyone see you immediately after episodes of alleged harassment?
» Did the person who harassed you harass anyone else?
» Do you know whether anyone complained about harassment by that person?
» Are there any notes, physical evidence, or other documentation regarding the incident(s)?
» How would you like to see the situation resolved?
» Do you know of any other relevant information?

Questions to Ask the Alleged Harasser:

» What is your response to the allegations?
» If the harasser claims that the allegations are false, ask why the complainant might lie.
» Are there any persons who have relevant information?
» Are there any notes, physical evidence, or other documentation regarding the incident(s)?
» Do you know of any other relevant information?

Questions to Ask Third Parties:

» What did you see or hear?
» When did this occur?
» Describe the alleged harasser's behavior toward the complainant and toward others in the workplace.
» What did the complainant tell you? When did s/he tell you this?
» Do you know of any other relevant information?
» Are there other persons who have relevant information?

Credibility Determinations

» Inherent plausibility: Is the testimony believable on its face? Does it make sense?
» Demeanor: Did the person seem to be telling the truth or lying?
» Motive to falsify: Did the person have a reason to lie?
» Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party's testimony?
» Past record: Did the alleged harasser have a history of similar behavior in the past?

6. Assurance That The Employer Will Take Immediate And Appropriate Corrective Action When It Determines That Harassment Has Occurred

The final stage of the process occurs when the employer reaches a decision on the course of action it will follow in response to an allegation of harassment. The level and extent of the employer's response to a complaint of harassment will often reveal whether the incident has been handled in good faith. For instance, if a company secretary charges that his or her supervisor touched him or her in an inappropriate manner while suggesting that they discuss his or her annual performance review over dinner that night, and the employer's sole response, following an investigation, is to send the supervisor a copy of the company's accepted practice for the completion of performance reviews, the company's good faith will be called into question.

In some instances, immediate discharge is the only appropriate course of action in a case of harassment. In other cases, suspension without pay, placement on probationary status, demotion or even job transfers may be the proper response. A transfer of positions may be particularly suitable when bad feelings have arisen between the principals involved in a possible harassment situation, even though the employer's investigation indicates that harassment has not actually occurred. Choosing the response appropriate in a given situation is critical, as an employee who believes that his or her complaints of harassment have been given top priority and careful investigation, followed by a just discipline, will be far less apt to file charges or litigation against his or her employer.

B. Additional Preventive Measures

1. Employee Training

U.S. Supreme Court decisions emphasize the importance of harassment training, involving sexual and other forms of harassment. Employees should be provided informational presentations discussing the prevalence of harassment in the workplace. Further, employees should be informed of the company's policies regarding these issues and what steps to take if they are privy to such conduct. Training on harassment issues should be conducted on a regular basis and special attention should be paid to the training of supervisors, whose conduct puts the company at greatest risk.

2. Hiring Process

The hiring stage is an employer's best opportunity to eliminate harassment from its workplace. The likelihood of an incident of harassment occurring in the workplace is greatly reduced if an employer can identify a probable offender during its hiring process. To achieve this goal, an employer should require that all applicants complete an employment application. Moreover, the employer should investigate any questionable information provided by the applicant, check the applicant's references, and contact the applicant's previous work supervisors. See First Interregional Equity Corp. v. Haughton, 805 F. Supp. 196, 201 (S.D.N.Y. 1992) (stating that an employer should make reasonable inquiry into the qualifications of potential employees). In addition, an employer should personally interview its applicants at which time the employer should question applicants about any gaps in employment history and reasons for leaving prior jobs. In conjunction with the hiring process, employers should keep written records of any investigation regarding an applicant's background.

3. Examine The Workplace

An employer should frequently examine the workplace to safeguard itself from liability. With respect to sexual harassment, an employer should survey the workplace to see if unacceptable language is used, inappropriate pictures are displayed, or if any other behavior that would be offensive to a reasonable person regularly occurs. When inspecting the work environment, an employer must be objective in its evaluation because a claim of harassment based on a hostile environment is viewed from the reasonable person's perspective. By periodically observing its work environment, an employer may be able to rectify such situations before they escalate into serious problems.

II. UNIQUE ISSUES RELATING TO SEXUAL HARASSMENT - WHAT DOES IT MEAN AND HOW IS IT DEFINED?

Sexual harassment is a frequently used term in today's society. The question that employers must be concerned with is: what does sexual harassment mean in a legal sense? Each individual may have a different interpretation as to what constitutes sexual harassment, but courts and legislatures have attempted to provide a bright line legal definition of sexual harassment, and recent decisions have clarified the definition to a greater extent. For employers to protect themselves, they must focus on preventing behavior that meets this legal definition.

A. Title VII

Sexual harassment is a form of sex discrimination that is prohibited under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. 2000 et seq. (1997). In addition, many states have enacted civil rights statutes that closely parallel Title VII. For a definition of sexual harassment, therefore, it is necessary to turn to federal law. The federal regulations promulgated by the Equal Employment Opportunity Commission ("EEOC") to implement Title VII define sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. 29 C.F.R. 1604.11(a) (1992).

Based on these EEOC regulations, courts have designated sexual harassment as either "quid pro quo" or "hostile work environment" harassment. In the past, courts have generally viewed the first two prongs of the EEOC regulations as constituting quid pro quo harassment and the last prong as hostile work environment harassment. Hostile environment harassment, first recognized by the Supreme Court as actionable under Title VII in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), was the subject of two significant Supreme Court decisions in 1998, Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), discussed in more detail below. The Ellerth decision characterized the distinction "between quid pro quo and hostile environment as a distinction between cases involving a threat which is carried out and offensive conduct in general," 118 S. Ct. at 2265, and as being significant in determining whether Title VII is violated explicitly or constructively. Despite some distancing from complete reliance on these terms, which have become a standard part of sexual harassment parlance, the Supreme Court nonetheless makes clear that the body of law which has developed around these two types of sexual harassment is still relevant. Therefore, some further explanation of these terms should be helpful.

1. Quid Pro Quo Harassment

Quid pro quo harassment is a sexual demand directly linked to the grant or denial of an economic benefit to the victim. Prior to 1998, to establish a violation of Title VII on a quid pro quo theory, a plaintiff had to prove five elements: (1) that he or she is a member of a protected class; (2) that he or she was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) that the harassment complained of was based on sex; (4) that submission to the unwelcome advances was an expressed or implied condition for receiving job benefits or that refusal to submit to a supervisor's sexual demands resulted in a tangible job detriment; and (5) existence of respondent superior liability. See, e.g., Barnes v. Costle, 561 F.2d 983 (D.D.C. 1977) (involving employee whose job was abolished after she refused supervisor's sexual advances); Shrout v. Black Clawson Co., 689 F. Supp. 772 (S.D. Ohio 1988) (involving employee whose supervisor withheld annual performance evaluations and salary reviews after employee refused sexual advances, with result that employee received no pay increases).

Then and now, quid pro quo harassment can be committed only by a member of management, a supervisor, or a person with the authority to withhold or grant a tangible employment benefit. In its recent decisions, Burlington Industries v. Ellerth, 118 S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), the Supreme Court affirmed that employers will be liable automatically for quid pro quo harassment, which the Court defined as harassment by a supervisor resulting in tangible employment action - regardless of the employer's efforts to investigate or to remedy the harassment. A "tangible employment action" is considered to be action such as demotion, discharge or transfer to an undesirable assignment. Thus, the Court established a more "streamlined" cause of action for quid pro quo harassment, while restating with significant emphasis the employer's absolute duty to eliminate this type of conduct in every instance. Employers must be aware that liability for quid pro quo arises whether or not the employee complained or even if the employer was unaware of the harassment.

2. Hostile Work Environment Harassment

Not surprisingly, hostile environment harassment is more frequently the subject of litigation in this area than is quid pro quo harassment. Hostile environment harassment, unlike quid pro quo harassment, may be created by co-workers, superiors, or even nonemployees. The Supreme Court, in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), explicitly recognized the validity of claims based on a hostile work environment, holding that a sexual harassment claim exists if offensive and unwelcome action based on gender is sufficiently severe or pervasive to alter conditions of employment and create a hostile work environment.

a. The Characteristics Of A Hostile Work Environment

In Harris v. Forklift Systems, Inc., 114 S. Ct. 367 (1993), the Supreme Court held that for behavior to constitute a hostile work environment under Title VII, the behavior must be severe or pervasive enough to create a hostile environment and be objectively offensive (i.e., behavior which actually offended the complainant and is offensive from the perspective of a reasonable person). The Court emphatically held that the work environment does not have to rise to the level of seriously affecting an employee's psychological well being to comprise a hostile work environment. Further, the Court recognized that although employees' psychological make-ups are not affected, an abusive work environment can detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. In a concurring opinion to Harris, Justice Ginsburg stated that, in effect, the critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. Harris v. Forklift Systems, Inc., 114 S. Ct. 367, 372 (1993) (Ginsburg, J. concurring).

In its more recent pronouncements on this topic, the Supreme Court reiterated the basis for its decision in Harris, that a sexually objectionable environment must be both objectively and subjectively offensive, and directed courts to determine whether the work environment is hostile "by looking at all the circumstances," including the "frequency of the Â… conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance." 118 S. Ct. at 2275.

b. Forms Of Hostile Environment Harassment

Behavior that may be found to constitute sexual harassment can take many forms. These include:

1. Unwelcome Attention. Employers must be cognizant of how their employees interact with one another. Unwanted advances made by a co-worker may be perceived by certain employees as harassing. If the unwelcome attention is sufficiently severe and pervasive to create a hostile work environment, an employee will be successful in his or her sexual harassment claim. In Fuller v. City of Oakland, No. C-89-0116 MHP, 1992 U.S. Dist. LEXIS 2546 (N.D. Cal. Feb. 10, 1992), the plaintiff alleged sexual harassment based on a co-worker's continued pursuit of her following the termination of a consensual relationship. The court held that although the conduct was disturbing, it was not severe and pervasive enough to create a hostile work environment. In another case, however, a federal court in Colorado held that a male employee who was terminated, allegedly after a female supervisor harassed him about rekindling a past romantic relationship, had established a prima facie case of quid pro quo and hostile environment harassment. In that case, Schrader v. E.G. & G., Inc., 953 F. Supp. 1160 (D.Colo. 1997), the plaintiff's claim of hostile environment survived, even though he had failed to file a formal complaint against his supervisor, because his immediate supervisor knew about the harassment and its effect on the plaintiff.

2. Sexually Explicit Remarks, Pornographic Displays, And Unwelcome Touching. In both Faragher and Ellerth, female employees were subjected to lewd gestures, sexually explicit comments, derogatory comments about women and sexual overtures. Significantly, the Court's decisions in both cases were in favor of the female employees. Other courts have not hesitated to condemn pornographic displays and sexually explicit conduct as hostile work environment harassment. In Stair v. Lehigh Valley Carpenters Local Union No. 600, C.A. No. 91-1507, 1993 U.S. Dist. LEXIS 8668 (E.D. Pa. June 24, 1993), the court held that the plaintiff had suffered intentional discrimination because of her sex based on her Union's conduct in purchasing and distributing calendars featuring photographs of nude women, which were then posted on job sites where the plaintiff worked. The court stated that an "intent to discriminate on the basis of sex in cases involving pornographic materials is 'implicit' and courts should recognize this 'as a matter of course'." See Stair, 1993 U.S. Dist. LEXIS, at *59. See also Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1493-99 (M.D. Fla. 1991) (sexually explicit verbal remarks and jokes, and pornographic graffiti and posters at shipyard support claim of hostile environment sexual harassment); Jenson v. Eveleth Taconite Co., 139 F.R.D. 657, 663 (D. Minn. 1991) (sexually explicit graffiti and posters at mining facility and unwelcome kissing, pinching, and grabbing can constitute sexual harassment).
   
   It is becoming increasingly difficult for employers to succeed in having sexual harassment cases dismissed on summary judgment prior to trial, in situations where allegations of sexually graphic language, improper touching and circulation of pornographic material are raised. A federal court in western Pennsylvania denied summary judgment to an employer in a case in which a supervisor allegedly displayed nude pictures of women, tolerated displays of pornography and made sexually explicit comments to a pregnant employee. In that case, Taylor v. Cameron Coca-Cola Bottling Co., 1997 U.S. Dist. LEXIS 12114 (W.D. Pa. 1997), the court held that the conduct was severe and pervasive enough to constitute a hostile work environment. In another recent case, the U.S. Court of Appeals for the Eleventh Circuit reversed the grant of summary judgment to an employer in a case in which a female employee alleged that a supervisor wrote her sexually explicit notes, solicited sexual favors, told sexually explicit jokes and improperly touched her. The court, while expressing no opinion as to whether the employee would prevail on her claim at trial, nonetheless was critical of the lower court's failure to address the pivotal issue of whether the plaintiff had been subjected to a hostile work environment. Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997). Given the new standard enunciated by the Supreme Court, the courts will subject employers to even greater scrutiny.

3. Nonsexual Derogatory Remarks About Women. In Andrews v. City of Philadelphia, 895 F.2d 1469 (3rd Cir. 1990), the Third Circuit held that derogatory and insulting remarks about women which are not explicitly sexual in nature may form the basis of a hostile work environment harassment claim. Andrews, 895 F.2d at 1485. Further, this reasoning was affirmed by the Supreme Court in Harris, where it stated that Title VII is violated "[w]hen the workplace is permeated with 'discriminatory intimidation, ridicule, and insult'." Harris, 413 S. Ct. at 370 (quoting Meritor, 477 U.S. at 65).

c. Electronic Mail Harassment

The availability of electronic mail ("e-mail") in virtually all workplaces provides the potential harasser another avenue in which he or she can exhibit hostile behavior. Without speaking or physically acting, an employee can utilize e-mail to harass a co-worker. In Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853 (7th Cir. 1997), a male employee continually e-mailed a female coworker offering her rides home. Although the female co-worker did not bring a claim of sexual harassment, the behavior disturbed her enough for a sexual harassment investigation to be initiated by her employer, the Sun-Times. Further, serious acts of harassment such as unwelcome touching and rape often have their genesis in the form of e-mail. See Yamuguchi v. U.S. Dep't of the Air Force, 109 F.3d 1475 (9th Cir. 1997) (employee's eventual rape of co-worker was preceded by unwanted e-mail messages, notes, and gifts).

Employers should make their employees aware of the fact that e-mail is equivalent to sending unwanted written notes or placing unwanted telephone calls to a co-worker. Because of the lack of face to face contact, employees may be more courageous to send an inappropriate e-mail than another form of communication. Employers, therefore, must remain alert to the possible misuse of their e-mail capabilities.

d. Same-Sex Harassment

On March 4, 1998, in the case of Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998), the Supreme Court held that Title VII's prohibition against sexual harassment protects men as well as women. The Court emphasized that, to be actionable under Title VII, the actions complained of must have occurred "because of" the plaintiff's sex. The Oncale case was closely watched, because all of the participants, both the alleged sexual harassers and the alleged victim, were male oil rig workers. Thus, employers must be aware that a hostile work environment can arise from interaction between employees of the same sex. This thinking is in accord with the Supreme Court's decisions in Harris and Meritor in which the Court's reasoning was cast in gender neutral terms. In Oncale, the Supreme Court reversed the lower court's decision that a male employee had no cause of action under Title VII for harassment by male co-workers.

III. EMPLOYER'S LIABILITY FOR ITS EMPLOYEE'S SEXUAL HARASSMENT

In Ellerth and Faragher, the Supreme Court affirmed that the essence of an employer's liability for workplace sexual harassment generally is based on the theory of agency and vicarious liability. Such theories of liability are grounded on the theory that masters (i.e., employers) are liable for the acts of their servants or agents (i.e., employees). In Ellerth and Faragher, the Court held that employers will be liable for the sexual harassment of employees by their supervisors if the sexual harassment results in a "tangible employment action," such as demotion, discharge, or transfer to an undesirable assignment. This liability will arise whether the employee complained or whether the employer was otherwise aware that the sexual harassment was taking place. In contrast, if no "tangible employment action" results from the harassment, the Court ruled that the employer will be able to raise an affirmative defense if: (1) "it exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and (2) "the employee unreasonably failed to take advantage of any preventative or corrective measures by the employer." These decisions underscore the importance of creating, disseminating, and enforcing a comprehensive, "no-tolerance" sexual harassment policy. Employers should ensure that employees are aware both of their policies and their procedures for handling harassment claims. Such awareness may require conducting frequent training sessions for employees concerning what type of behaviors will constitute harassment and the procedures by which employees can report such inappropriate behavior. Moreover, employers must respond, in swift and suitable manner, to all complaints of sexual harassment or inappropriate conduct. Because even the most effective enforcement program will not protect an employer if a supervisor's actions result in a "tangible employment action," it is imperative that supervisors receive effective training. In addition, employers may wish to consider instituting oversight procedures whereby all significant employment actions are reviewed prior to being put into effect. Such safeguards will contribute to uniformity, consistency, and fairness in supervisory decision making as well as aiding in the prevention of sexual harassment. Additional specific steps employees can take are set forth in Section I of this article.

IV. BEYOND SEXUAL HARASSMENT - BROADENING VICARIOUS LIABILITY UNDER ELLERTH AND FARAGHER TO ENCOMPASS ALL DISCRIMINATION CLAIMS

Although the recent Supreme Court decisions in Ellerth and Faragher dealt only with claims of sexual harassment, there is a growing trend within the courts to apply the same principles to all claims brought under Title VII. As one court noted, "it appears that the Court in Ellerth and Faragher intended to apply the same agency principles to all vicarious liability inquiries under Title VII for acts of supervisors." Allen v. Michigan Dep't of Corrections, 165 F3d 405, 411 (6th Cir. 1999) (citation omitted). Accordingly, courts have applied the Ellerth and Faragher liability principles to harassment claims based on:

This trend will likely continue, especially given that the Supreme Court has expressed a preference for harmonizing the standards "of what amounts to actionable harassment." Faragher, 118 S.Ct. 2275, 2283 n.1 (comparing racial and sexual harassment claims). Ultimately this requires an employer to think not just of sexual harassment, but all potential discrimination claims when formulating an effective harassment policy.

Kathleen Furey McDonough has practiced law since 1985 with the Wilmington, Delaware, firm of Potter Anderson & Corroon LLP. She has been a partner in the firm since 1993, and currently chairs the firm's Associates Committee. Ms. McDonough is a 1985 graduate of the Temple University School of Law and graduated from Saint Joseph's University in 1979. Ms. McDonough concentrates her practice in the area of employment law. She provides human resources personnel and other members of management with advice regarding personnel policies and practices. She also regularly represents employers in employment and employment-related matters in federal and state courts and administrative agencies. Ms. McDonough is a former Chair of the Delaware State Bar Association Labor and Employment Law Section and is a frequent lecturer on employment law and litigation issues.