News Release

1998, CCH INCORPORATED. All Rights Reserved.

Contact:
Mary Dale Walters — 847-267-2038, mediahelp@cch.com
Leslie Bonacum — 847-267-7153, bonacuml@cch.com

VIEW IS CHANGING ON SEXUAL HARASSMENT

IN LIGHT OF SUPREME COURT RULINGS

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:

  1. Taking steps to prevent sexual harassment from occurring in the workplace, including creating and distributing a written anti-harassment policy;

  2. Providing a complaint and investigation procedure to combat any alleged harassment that occurs, and

  3. Conducting training to ensure that supervisors and employees are aware of the harassment prevention program and where employees should complain if they believe they are victims of harassment.

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:

  • Showing that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior.

  • Establishing that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

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:

  • Revisit the existing policy against sexual harassment -- The policy should include a definition of harassment, a harassment prohibition statement, a description of the complaint/grievance procedure, details of specific disciplinary measures and a statement of protection against retaliation for reporting harassment.

  • Establish flexible grievance procedures -- This should explain how employees can file complaints, what they can expect once they've filed and the time frame in which the complaint will be investigated. Because it’s crucial for employers to be aware of harassment so that they can take steps to stop it, a key to the grievance procedure is making certain that there are avenues, other than making a complaint to a supervisor. This might include filing a complaint with the human resources department, anonymously via a "tip line" or with a supervisor’s superior.

  • Train supervisors -- As the rulings indicate, an employer can be liable for sexual harassment even if it is unaware of the harassment occurs. As a result, employers should diligently train supervisors to understand sexual harassment, how to enforce policies to prevent it and how to act upon it properly if it is identified.

  • Monitor supervisors -- In addition to training supervisors, employers can help ensure that the training is put to use by evaluating supervisors' performance based on actions they are taking to create a harassment-free workplace.

  • Have HR review actions related to change in employee status -- When employees are demoted, transferred, fired or their status otherwise changes, the HR department should review documents discussing this to make sure the change does not appear to be a reaction to a sexual harassment issue.

  • Probe during exit interviews -- Not all employees will label unwelcome conduct as harassment. An employee might complain, for example, about "unprofessional conduct" or "inappropriate behavior." As a result, employers should ask the employee to describe the conduct more specifically. If a company determines an employee is leaving due to sexual harassment, it’s in the company’s best interest to know so that steps can be taken to correct the situation.

  • Ensure employee awareness of policies -- This can be accomplished by periodically distributing a policy to all employees, and to all new hires at orientation, as well as posting a copy in a prominent place in the workplace. Employers may also want to have their employees sign a statement indicating they’ve read the policy and understand it.

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:

  • Was the alleged harasser a supervisor? The Court said that supervisors have been empowered by the company to make economic decisions affecting employees under their control. But in a team-based structure, many co-workers can have an impact on an employee’s economic terms of employment. Where will the line be drawn as to whom is a supervisor?

  • What amount of involvement in the harassment is required by a supervisor? Must the supervisor actively engage in harassment, or is it enough that the supervisor condones harassment by failing to stop it?

  • Did the victim of harassment suffer a tangible job detriment? The Court said a tangible employment decision requires an official act of the company. A demotion, termination or poor job rating would clearly fit the definition. But what about indirect losses, such as the loss of a mentoring opportunity or a victim’s inability to receive a production bonus because harassment-related stress caused performance to fall off?

  • Did the employer take reasonable steps to prevent harassment? Does a small employer have the same obligation to invest in regular training as a larger employer with more resources? Are the requirements the same at a remote site office as at a company’s headquarters?

  • Did the employee make a reasonable effort to take advantage of any opportunity provided by the employer to complain about the harassment or otherwise avoid harm? What if the employer has a history of ignoring sexual harassment complaints? Is the employee obligated to engage in a futile process? What if the harasser is a high-ranking executive?

  • Where will the line be drawn between reasonably responding to sexual harassment and protecting supervisors from wrongful discharge, defamation or invasion of privacy?

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.

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