U.S. Supreme Court Rules on Vicarious Liability of Employers in Two 1998 Sexual Harassment Cases
The U.S. Supreme Court ruled on June 26, 1998, in two cases, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth.Employers now have more reason to be diligent in their efforts to prevent sex harassment in the workplace. The Court clarified employers' liability under Title VII for the actions of their supervisors after the U.S. Circuit Courts had reached a variety of conclusions.
Employers Liable for Supervisors' Actions. The Supreme Court held in both cases that an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. The liability of the employer is automatic when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. However, when no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages.
Affirmative Defense Available to Employers. The affirmative defense available to employers comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action.
The Supreme Court also held in both cases that while proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may be addressed when litigating the first element of the defense.
The Court also stated in both cases that while an employee's failure to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use an employer's complaint procedure, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense.
Antiharassment Policy With Complaint Procedure, Communication and Training Necessary. As a result of these cases, employers must have a well written antiharassment policy with an appropriate complaint procedure, must communicate the policy and complaint procedures to its employees regularly, and must have a regular training program for supervisors and employees.
Prior to these decisions of the Supreme Court it was always recommended that employers create these types of preventive programs. Now the U.S. Supreme Court has made it necessary to have such programs in place.
The Decision in Faragher v. City of Boca Raton. The Faragher case involved lifeguards employed by the City of Boca Raton where the Eleventh Circuit ruled that an employer is not liable unless it actually knew, or had reason to know of the misconduct.
The U.S. Supreme Court reversed the Eleventh Circuit and found that the degree of hostility in the work environment rose to the actionable level and was attributable to the plaintiff's supervisors. The Supreme Court found that the City had failed to disseminate its policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors.
Furthermore, the U.S. Supreme Court reversed the Eleventh Circuit and found that the City's policy did not include any assurance that the harassing supervisors could be bypassed in registering complaints. Under such circumstances, the Court held that the City could not be found to have exercised reasonable care to prevent the supervisors' harassing conduct. Unlike the employer of a small workforce, the City of Boca Raton needed to communicate a formal policy against harassment, with a sensible complaint procedure.
Decision in Burlington Industries v. Ellerth. In the Burlington Industries case the plaintiff Ellerth quit her job after 15 months as a salesperson in one of Burlington Industries' divisions, allegedly because she had been subjected to constant sexual harassment by one of her supervisors. Ellerth refused all of her supervisors advances, but suffered no tangible retaliation, and she never informed anyone about her supervisor's conduct.
Quid Pro Quo and Hostile Work Environment Harassment. The Supreme Court stated that cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The Court stated that the terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility.
The Court found that to the extent the terms illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, the conduct must be severe or pervasive. Because Ellerth's claims involved unfulfilled threats, it was categorized as a hostile work environment claim. The Court then went on to discuss vicarious liability of the employer and remanded the case to the District Court.
All employers should have a sexual harassment policy which prohibits sexual harassment in the workplace. In addition, the policy can be broadened to include other types of illegal discriminatory harassment. An employer can help prevent sexual harassment by supplementing the policy with sensitization and training of employees and supervisors to the issue and how to prevent and handle sexual harassment complaints. A sample policy and investigation procedure is at the end of this chapter.