"Today the Supreme Court took away the "see-no-evil" defense to charges of sexual harassment," said NOW President Patricia Ireland. "With this new interpretation, the Court has put employers on notice that they must make their workplaces harassment-free zones."
The Court ruled that any supervisor is an agent of the employer, regardless of job description or official duties, meaning that the employer can be found liable for harassment by supervisors, whether the employer knew about the harassment or not. This is an important clarification of sexual harassment law.
Ireland also applauded the Court's recognition that a company can be liable even if the woman isn't fired or denied promotions or raises for rejecting unwelcome advances. But she warned about possible problems with the new affirmative defense the Court created for such cases. Under today's decision in Burlington Industries v. Ellerth, to successfully defend against liability an employer must prove that (1) it has taken "reasonable" steps against sexual harassment and (2) the plaintiff "unreasonably" failed to take advantage of the company's sexual harassment policy or to "avoid harm otherwise."
"While the decisions today are good signs for women, we are concerned with what will be held ‘reasonable' and ‘unreasonable' under the facts of future cases," Ireland said. "A powerful district court judge will undoubtedly have a different interpretation of reasonable actions than a woman intimidated by a harassing boss."
NOW's other concern is over the concept of economic harm in determining liability in sexual harassment cases.
"Why should the Court make it harder for women who take matters into their own hands by resigning than for women who are fired for not acquiescing?" Ireland asked. In her lawsuit against Burlington Industries, Kimberley Ellerth stated that she finally quit her job at Burlington to escape the harassment.
"NOW has consistently said employers have an ethical responsibility to prevent sexual harassment. Now the Supreme Court has confirmed they have legal responsibility as well," Ireland said. "The best defense against liability is a good offense: management training, effective, well-publicized sexual harassment policy, prompt and appropriate discipline for violators, protection against retaliation and -- most importantly -- equal opportunity for women."
Ireland's comments came in response to the Court's rulings in Burlington
Industries v. Ellerth and Faragher
v. City of Boca Raton.