Recent U.S Supreme Court decisions have expanded the scope of potential employer liability for sexual harassment, but also made certain defenses available to the employer in certain circumstances. These cases have been instructive to the conscientious employer as to how best to protective itself from liability for the sexually harassing conduct of its employees.
Sexual harassment is a form of discrimination on the basis of sex that is prohibited by Title VII of the U.S. Civil Rights Act of 1964, as amended, as well as numerous state statutes. The Equal Employment Opportunity Commission, which enforces Title VII, defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature, which occurs under any of the following three conditions.
1.) Where submission to the conduct is either implicitly or explicitly made a term or condition of employment;
2.) Where submission to or rejection of such conduct is used as a basis for decisions
regarding employment decisions;
3.) Where the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment
The critical factor that makes the sexual behavior unlawful is that it is unwelcome by the recipient.
The law in this area has been developing over the past decade to impose greater liability on the employer for harassing conduct on the part of its employees with the result that complaints for sexual harassment filed with the EEOC have tripled since 1990. Most executives are aware of the sometimes massive verdicts against employers which reach the newspapers, but may be unaware of the tremendous cost, in terms of both attorney’s fees and lost management time, to defend a sexual harassment claim even where liability is ultimately avoided. The prudent employer is, therefore, well advised to learn the lessons of the Supreme Court’s recent opinions.
Same Sex Harassment
The courts have now responded to the question “who can be harassed” and ruled that same sex harassment is actionable. The court ruled, relying on the language of Title VII, that such harassment is actionable if it is based on sex, whether or not it is motivated by sexual orientation or desire. The opinion is, unfortunately uninformative as to what types of same sex conduct not motivated by sexual orientation or desire might constitute unlawful same sex harassment.
Tangible Job Action; No Defense
The employer will be automatically liable for harassment by one in a supervisory capacity where the complainant has experienced a tangible job action as a result of the harassment. “Tangible job action” is a significant change in the employment conditions of the complainant such as promotion/demotion, change in rate of compensation, discipline, etc. The employer has no affirmative defense to this type of harassment and faces liability automatically if the employee suffered this harm if the employer knew or should have known this was taking place.
No Tangible Job Action: Defense Available
Where no tangible job action is at issue, the employer has an affirmative defense to a sexual harassment claim where the employer can show: 1.) That the employer used reasonable care in preventing and correcting sexually harassing behavior and 2.) The employee unreasonably failed to use the employer’s internal complaint procedures to report the harassment.
In other words, if the employee can show that it discharged its duty of reasonable care and that the employee could have avoided the harm, but unreasonably failed to do so, the employer will avoid liability for unlawful harassment. More importantly, if the employer effectively discharges its duty of reasonable care in preventing and correcting sexually harassing behavior, harassment will be avoided, and issues of liability and the attendant costs of litigation, will not have to be reached. It is therefore in every employer’s economic best interest to institute policies and procedures designed to prevent and correct sexual harassment in the first place, and best position the employer defensively should a harassment charge be brought.
What Should Employers Do?
- Establish, publicize and enforce written anti-harassment and complaint procedures. Obtain experienced legal advice as to its drafting.
Provide a copy to each employee and redistribute it periodically.
Post the policy in central locations and incorporate it in the employee handbook, if any.
Provide training to all employees, if feasible, and at least to managers, to ensure
that they understand their rights and responsibilities with regard to the policy and
The anti-harassment and complaint procedure should contain, at a minimum the following components:
A clear explanation of the prohibited conduct;
Assurance that employees making a complaint of harassment or cooperating the investigation of alleged harassment will not be retaliated against;
A clearly described complaint process, affording multiple avenues of complaint;
Assurances of a prompt, thorough and impartial investigation of the complaint;
Assurance that the employer will keep the investigation confidential to the extent possible; and
Assurance that the Employer will take immediate and effective corrective action if harassment is found to have occurred.
2. Monitor the Workplace.
An employer is responsible for sexual harassment and other forms of discrimination it knew or should have known existed, whether or not a complaint has been made.
For example, if there is graffiti in the workplace that contains sexual or racial epithets that are offensive, the employer should have it removed.
Check back periodically with any employee who has complained of sexual harassment to make sure it is not recurring.
Pay close attention to areas of the company where employees of predominantly one sex are employed or where supervisors of only one sex exist.
3. Periodic Training and Monitoring of Mangers and Supervisors
Train to ensure that supervisors and managers understand their responsibilities under the established anti-harassment and complaint procedure and include compliance in their performance reviews. There are services that provide such training and any good employment attorney can perform these on a regular basis.
Investigate all claim of sexual harassment or other types of discrimination promptly and thoroughly. Select an investigator experienced in handling such complaints.
5. Take Prompt Effective Action.
Where an investigation reveals that harassment is found take immediate action, including termination if indicated, to ensure that the harassment stops. Even where no harassment was found to have occurred, or where the investigation was inconclusive, re-familiarizes the alleged harasser with the employer’s policy against harassment and against retaliation.
Consider obtaining insurance coverage for employment practices. Note such insurance will normally not cover intentional wrongful acts of the Employer, so be sure to have the policy carefully reviewed by the broker or attorney.
The prudent employer in today’s employment environment will institute and enforce an effective sexual harassment prevention program and complaint procedure, designed to prevent unlawful harassment in the first instance and place the employer in the best defensive position if a harassment claim is made.
The law is not a “fad” nor is it going to disappear. It is both federal and state and is likely to become increasingly enforced. The wise employer will understand that adjusting to the requirements of the law, both practical and legalistic, is just one more business skill required of the professional business manager.