The U.S. Supreme Court has recently decided two important cases in the area of sexual harassment: Burlington Industries, Inc. v. Ellerth, Docket No. 97-569 and Faragher v. City of Boca Raton, Docket No. 97-282. These cases follow on the heels of two other recent sexual harassment decisions, one of which found that Title VII of the Civil Rights Act of 1964 covers same sex sexual harassment, Onkill v. Sundowner Off Shore Services, 118 Supreme Court 998 (1998), and the other of which found that school districts could not be held liable for teachers' sexual harassment of a student under Title IX, unless school officials knew about the problem and failed to take appropriate remedial action, Gebser v. Lago Vista Ind. Sch. Distr., Docket No. 96-1866.
In previous cases, courts have distinguished between two types of supervisory sexual harassment: (1) quid pro quo harassment, where the supervisor conditions some job benefit or detriment upon a subordinate's acceptance of sexual advances or favors; and (2) hostile environment harassment, where the supervisor subjects a subordinate to sexual comments, gestures, or advances which are sufficiently severe and pervasive to alter the conditions of the employee's employment. In these two recent decisions, the Supreme Court clarified the standards for employer liability in such situations.
If a supervisor subjects a subordinate employee to some negative job action based upon the employee's acceptance or rejection of his/her sexual advances, the company will be automatically liable for that supervisor's harassing conduct. It is irrelevant in such a situation whether the company maintained an anti-harassment policy or whether the victim complained to management, and no affirmative defense is available to the employer in such cases. Examples of tangible employment action include: discharge, demotion, pay cuts, withholding a raise or a promotion, job reassignment with significantly different duties, or creating work conditions that are so intolerable that the employee is forced to resign.
Where a supervisor acts in a manner which creates a hostile work environment for a subordinate employee, but does not take any negative job action against that employee, and where the conduct is extreme, severe or pervasive, the employer will be held liable for sexual harassment unless it can meet the following requirements:
- The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
- The employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
The key to avoiding liability under this standard lies in the establishment of, and strict adherence to, the company's anti-harassment policies and procedures. In light of these decisions, it is a good time to either reevaluate existing anti-harassment policies or draft new ones prohibiting sexual harassment.
At a minimum, such policies should:
- Clearly state that the company prohibits sexual harassment by employees, regardless of their position.
- Clearly state that no employee who complains to management regarding sexual harassment in the workplace will be retaliated against for reporting such conduct.
- Provide multiple avenues for an employee to complain of harassment. An open door policy for reporting sexual harassment up to the highest level of authority should be maintained.
- Advise employees to contact their supervisor, the human resources department, or other appropriate management when faced with such conduct occurring in the workplace.
- Be posted conspicuously throughout company and distributed to all employees, wherever their location.
- Be affirmed on an annual or semi-annual basis through employee meetings, at which a record of employee attendance is maintained.
In addition, employers should:
- Require members of company management to attend periodic training sessions to discuss the company's policies and ways in which to address sexual harassment complaints by employees and keep records of attendance at those meetings.
- Require employees to sign an acknowledgment of receipt of the employer's sexual harassment policy so there is no ambiguity regarding the proper procedures for reporting sexual harassment.
- Investigate and remedy complaints of sexual harassment quickly.