Magazine article HRMagazine

Beyond Harassment Prohibitions

Magazine article HRMagazine

Beyond Harassment Prohibitions

Article excerpt

Don't just 'set and forget' anti-harassment policies.

Since the landmark 1998 U.S. Supreme Court decisions in Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, most companies have recognized the importance of adopting equal employment opportunity and anti-harassment policies.

A new line of cases, however, suggests that this may not be enough.

Sexual Harassment Law

Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to fail or refuse to hire or to terminate any individual, or otherwise discriminate against any individual with respect to terms or conditions of employment, because of race, color, religion, sex or national origin. While the statute mentions specific employment decisions with immediate consequences, the Supreme Court has made clear that coverage under the law is not limited to economic or tangible discrimination.

In Meritor Savings Bank, FSB v. Vinson (1986), the Supreme Court first held that Title VII protects against sexual harassment where the conduct is severe or pervasive enough to alter the conditions of the victim's employment.

To be actionable, a sexually objectionable environment must be both objectively and subjectively offensive. In other words, the environment must be one that a reasonable person would find hostile or abusive.

Surrounding Circumstances

To determine whether an environment is sufficiently hostile or abusive, courts consider all surrounding circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating versus a mere offensive utterance, and whether it unreasonably interferes with an employee's performance.

Even in Meritor, however, the court suggested that employers could take steps to prevent or remediate their liability. For example, the court noted that a company grievance procedure might suggest that an employer should not be held liable. The court also suggested that employers could avoid liability based on the degree of corporate knowledge or culpability.

Type of Harassment

Accordingly, after Meritor, courts often determined employer liability according to the type of harassment alleged.

In cases of quid pro quo sexual harassment-where a supervisor threatened an employee with tangible adverse action if the employee refused to submit to sexual demands, and the supervisor subsequently carried out the threat-federal courts held employers vicariously liable, regardless of whether they were aware of the conduct at issue or took measures to prevent such conduct.

In cases involving hostile work environment sexual harassment-where a supervisor's unwanted sexual attention or unwelcome sexual overtures created an environment that was severe or pervasive enough to alter the conditions of the victim's employment and created an abusive working environment-many federal courts held employers vicariously liable only if they were negligent in discovering or remedying the harassment.

Employer's Defense

Along came the groundbreaking cases of Faragher v. City of Boca Raton, 524 U.S. 775, and Burlington Industries v. Ellerth, 524 U.S. 742, both in 1998.

In this pair of cases, the Supreme Court established a new standard for imposing vicarious liability on employers. When there is tangible adverse employment action by a supervisor-such as termination, demotion or undesirable reassignment-the employer is liable for the supervisor's discrimination, regardless of whether the employer approved, knew or should have known of the supervisor's actions.

When no tangible employment action is taken or when the harassment is not perpetrated by a supervisor, however, an employer may raise an "affirmative defense" to liability or damages. An affirmative defense is an argument or new information put forward by a defendant that wins a case even if what the plaintiffalleges is true.

Faragher and Ellerth established an affirmative defense if an employer can prove that it exercised reasonable care to prevent and correct harassment, and that the employee unreasonably failed to take advantage of the corrective or preventive opportunities provided, or to avoid harm otherwise. …

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