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CCH Reviews Rulings and Outlines Steps Employers Should Take to Move from Reactive to Proactive View of Sexual Harassment Policies, Grievance Procedures, Supervisor Training Among Critical Steps (RIVERWOODS, ILL., July 16, 1998) -- Recent Supreme Court rulings have significantly shaped the legal definition of sexual harassment -- including what it is, when employers are liable and what they must do to prevent sexual harassment, according to CCH INCORPORATED, a leading provider of employment law and human resources information. The Court’s rulings have made it clear that an employer can be liable for sexual harassment even if it is unaware of the harassment by supervisors and even if the victim of the harassment suffers no negative job consequences, such as a demotion or dismissal. The Court also has made it clear that an employer can be liable for sexual harassment even if the accused perpetrator is the same sex as the victim. But the Court also outlined a path for employers to avoid liability for harassment by supervisors by:
Review of the Cases The Supreme Court cases were brought under Title VII of the 1964 Civil Rights Act, as amended by the Civil Rights Act of 1991, which prohibits discrimination in the workplace based on race, color, sex, religion or national origin. Each case dealt with situations in which employees had not suffered any tangible job action (such as a demotion, firing or undesirable transfer) as a result of the alleged harassment. In the first case, Oncale v. Sundowner Offshore Services, this spring, the Supreme Court ruled that workers are protected from same-sex sexual harassment. The case involved a male employee working on an oil rig who alleged that three other male employees forcibly subjected him to sex-related, humiliating actions in the presence of co-workers. The employee's complaints to supervisory personnel produced no remedial action; and the employee eventually quit due to sexual harassment and verbal abuse. The court avoided discussing the sexual orientation of either the plaintiff or the alleged harassers; instead, the court stated that "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." In Burlington Industries v. Ellerth, an employee claimed that she quit after being subjected to repeated sexual harassment from her supervisor’s boss, including threats that he could make her work life more difficult if she did not accept his sexual advances. This employee had not told anyone else about the incidents, although she knew that the company had a policy against sexual harassment. She suffered no economic harm, and, in fact, received a promotion. In Faragher v. Boca Raton, the employee was a lifeguard who had been subjected to harassment over an extended period of time by two of her supervisors. In this case, the employee had confided in a third supervisor, but that supervisor had not informed upper management. Although the employer had a written policy against harassment, the policy had not been distributed to employees at the lifeguard’s worksite, nor had the employer established any means of tracking behavior of the lifeguards’ supervisors. Implications and Employers According to Paul Gibson, an attorney and human resources analyst for CCH's Health and Human Resources Group, the rulings in the Ellerth and Faragher cases make employers liable for any type of sexual harassment by supervisors, subject to a very limited defense. Employers historically have been held strictly liable where an employee suffered some tangible negative job consequence (such as a poor performance appraisal, demotion or termination) for rebuffing or complaining about a supervisor’s harassment. However, in these cases there were no clearly tangible negative job repercussions for the alleged victims of the harassment. Instead, the employees alleged that actions by their supervisors created a "hostile work environment" that was severe and pervasive enough to be intimidating or offensive. Second, while employees would normally have to show that their employer was negligent in not uncovering or not stopping the harassing behavior once it was discovered, in the two most recent cases the employees argued that they should merely be required to show (1) the actions occurred, (2) the actions were sufficiently severe and (3) the perpetrators were acting in some sense as agents of the employer. While not deciding specifically on whether sexual harassment occurred in these cases, the Court agreed with many of the employees’ arguments. The Court said that under Title VII of the Civil Rights Act, an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover damages against the employer. However, the Court also outlined that employers can avoid liability by using a two-part affirmative defense:
This defense will not be available, however, where some form of tangible job detriment occurred as a result of the supervisory harassment. "The ruling makes it clear that employers have a responsibility to stop workplace harassment, but employees also have a duty to try to prevent or stop the harassment by using the company's policies and complaint procedures," said Gibson. "As a result, the key issues for employers are to make certain that the policies and procedures are in place, that supervisors understand how to implement these policies and that all employees are aware of their existence and how to use them." Working Under the New Framework Given the new framework the Supreme Court rulings have established, Gibson advises companies to take several proactive steps to guard against sexual harassment in the future, including:
Gibson also noted that while much of the current attention is focused on setting up procedures to prevent sexual harassment, other harassment policies should not be overlooked. "Title VII also applies to race, color, religion and national origin. Courts also have held age harassment to be illegal. Companies can be liable to the same degree for harassment based on these attributes as they are for sexual harassment. Thus, any policy and training for sexual harassment should include education about every type of illegal harassment that can occur in the workplace." The Future of Sexual Harassment Suits Although the Supreme Court rulings define a new standard for employer liability in sexual harassment cases, according to Gibson, there are still many issues that will have to be resolved in a typical lawsuit alleging improper actions by a supervisor. These include:
About CCH INCORPORATED CCH INCORPORATED, Riverwoods, Ill., is a leading provider of employment law information and software for human resource professionals, including Human Resources Management, Pension Plan Guide, Benefits Guide and Payroll Management Guide. CCH also provides tax and business law information in print and electronic form for accounting, legal, health care and small business professionals. CCH is a wholly owned subsidiary of Wolters Kluwer U.S. -- # # # -- nb-98-64
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