On June 26, 1998, the United States Supreme Court issued two opinions which clarify the law on sexual harassment claims affecting employers. These two opinions make it easier for employees to pursue certain harassment claims against employers, but also provide protection to employers that institute and enforce strong anti-harassment policies.
In Burlington Industries, Inc. v. Ellereth, an employee sued her employer, alleging that she felt compelled to quit her job after her supervisor indicated that he could make life easy or hard for her depending on such things as whether she wore short skirts. In Farragher v. City of Boca Raton, a former lifeguard alleged that her two male supervisors had harassed her by creating a hostile work environment through repeated lewd and offensive remarks.
In deciding those two cases, the Supreme Court analyzed three sexual harassment scenarios. The first, commonly referred to as "quid pro quo" harassment, occurs when a supervisor takes an adverse job action against an employee (for example, discharge, demotion or undesirable reassignment) because the employee refuses the supervisor's sexual advances. The Supreme Court reaffirmed that in such situations the employer is absolutely liable for its supervisor's conduct, regardless of whether the employer has an anti-harassment policy and regardless of whether the employer had knowledge of the supervisor's conduct.
The second scenario (which took place in the Burlington Industries case) occurs when the supervisor threatens, but does not take, an adverse job action against an employee for failing to submit to sexual demands. The third scenario (which took place in the Farragher case), commonly known as "hostile work environment" harassment, occurs where the actions of a supervisor are so severe or pervasive as to alter the conditions of the victim's employment and create an offensive working environment. Under the second and third scenarios, while the employer is liable for the acts of its supervisors, liability is not absolute. The employer can escape liability by proving (1) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.
These two decisions reaffirm the critical importance of having a strong anti-harassment policy. The policy should not contain mere boilerplate language, but should be appropriately tailored to your business. It must also adequately advise employees of what to do if they feel they are being sexually harassed. Further, the policy must be actually disseminated to employees. In Farragher, although the defendant City had a formal anti-harassment policy, the Court found the City liable because the policy had not been disseminated and employees had not been told that they could bypass their supervisors in filing a complaint. Finally, employers should conduct periodic training of all employees on the topic of sexual harassment.