The explosion of sexual harassment litigation in the U.S. since the Senate confirmation hearings of Supreme Court Justice Clarence Thomas and the related testimony of Anita Hill is all too well-known to employers. In spite of a reluctance on the part of most courts to intrude in workplace romances or regulate the personal interplay between co-workers, once the line is crossed and clear sex harassment is established, the employer faces harsh penalties and the real possibility of damaging news coverage. At the same time, the U.S. Supreme Court sex harassment rulings provide clear guidance necessary for employers to avoid sex harassment exposure.
Three new cases (known as, Oncale v. Sundower Offshore Services, Faragher v. City of Boca Raton, and Burlington Industries v. Ellerth), have expanded employer liability but provide a road map for the defense of claims involving supervisors' harassment and non-homosexual same-sex harassment. Now more than ever, employers must take great care to ensure that internal sex harassment enforcement programs, including policy statements, investigation techniques and grievance mechanisms, are adequate and thorough.
In Faragher, a lifeguard quit her summer job and then brought a claim of harassment. She made no internal complaint to her employer, but filed a lawsuit in which she alleged that the
work environment over the coarse of her 6 year summer job was intolerable because of supervisors' were guilty of sexually offensive remarks, propositions and occasional touching.
In Ellerth, a low level supervisor threatened the plaintiff that if she did not engage in sexual activities with him, her prospects for promotion would suffer. Ellerth never complained to anyone in the company. After resigning, she notified her employer that she quit due to inappropriate sexual conduct and then sued the company claiming she was sexually harassed. The Court found that an employer could be liable for the harassing behavior of a supervisor even where the complaining employee has not suffered termination, loss of pay or other tangible job detriments. To escape liability however, an employer can show that (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior and (2) the employee unreasonably failed to take advantage of any corrective policies or opportunities available through the employer. The obvious impact is that harassment protection policies are now critical.
In the third case, the Court departs from the clear guidance typical of decisions in the area in recognizing same-sex harassment. In Oncale v. Sundowner Offshore Services, the plaintiff filed a claim after he was assaulted, touched, threatened with rape, and subjected to other harassing behavior by his male supervisors and co-workers, while working as a roustabout, on an all male oil rig. The court expanded the definition of sex harassment allowing the claim, even when the offending acts are not motivated by sexual desire as long as the harassment is "based on sex". According to the Court, the action is "based on sex" when the victim would not be exposed if he or she was a member of the opposite sex. This circular reasoning is of little help.
The court insists that it is not creating a civility code in the workplace. However, horseplay may now be separated from harassment, according to the Court, only after "careful consideration of the social context in which the behavior occurs and is experienced by the target."
This vague standard when added to the "because of sex" rule makes for a serious trap for employers.
In 1990 the EEOC strongly encouraged policy guidelines dealing with sexual harassment. After the recent Supreme Court rulings it is absolutely critical to adopt and enforce such programs. Companies should be sure to have adequate and up to date policies against sexual harassment in the workplace. Consider the following:
- Counsel employees about company's policies at orientation and annually thereafter
- Post policies in a prominent place as well as in the employee handbooks
- Make sure the policy provides a grievance procedure whereby an employee can bypass his or her supervisor when the supervisor is the alleged harasser
- Effective communication of the policy to employees is crucial to the defense of a sex harassment claims.
If a complaint is filed by an employee, the employer should take the following steps:
- Respond to the complaint within a few days by beginning an investigation of the matter
- Consider removing the alleged harasser from the employee's work environment rather than moving the employee while the investigation is pending
- Listen to each side of the story and gather all third party information
- Strive to maintain as much confidentiality as possible, but the complainant must understand that an investigation will occur and some fact disclosure is inevitable
- Upon completion of the investigation, notify the employee of the findings and document these findings and the notification
- Where improper and inappropriate behavior is found to have occurred, the harasser should be disciplined appropriately
- Employees must also understand that false and malicious claims will subject the complaining employee to appropriate discipline.
When an employer follows these methods it can show that it acted reasonably to protect against harassment and correct it where it occurred. State of Illinois contractors have special exposure stemming from the public contract or harassment protection certification system.
It is unwise to ignore the lessons of the courts in this area and attempt to negotiate the slippery slopes of sex harassment without proper guidance from qualified counsel.