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Rules Change on Sexual Harrassment Claims

Supreme Court to employers:
Sexual harassment policy is a must

by Harvey P. Sanders and Kathleen Rose*

Despite the fact that sexual harassment has long been illegal, employers and employees may have believed, until recently, that if the employer had no knowledge of any sexual harassment occurring in its workplace, it could not be held liable for such behavior.  In two recently issued decisions by the United States Supreme Court, new standards have been announced and employers have been sent a clear message -- if sexual harassment occurs in the workplace, the employer may be held liable even it it does not have knowledge of the behavior in question.  And lawsuits for sexual harassment can come with a high price.  But there is a way to avoid these claims.
The Cases
The two cases which gave rise to the groundbreaking decisions of the Supreme Court both involved male supervisors and female subordinates.  In one case, the employee was a city lifeguard for 5 years and was continuously exposed to discriminatory treatment by two of her supervisors, including the supervisor's refusal to promote women, insulting remarks about her body, comments about other women's bodies, discussions about sex, and unwanted touching.  The lifeguard decided to quit her job rather than submit to further maltreatment.  She was not aware of any sexual harassment policy or complaint process.

* Harvey Sanders is a partner in the law firm of Sanders & Sanders, which represents employees and employers    in all manner of employment-related issues.  Kathleen Rose is a law clerk for Sanders & Sanders.

The second case involved a salesperson who was also subjected to several sexually- charged comments by her supervisor, as well as threats that he could make her life at thecompany "very easy or very hard."  She was told she was not "loose enough" to obtain a promotion.  He also asked her if she was wearing shorter skirts, and made comments about her breasts, legs and buttocks.  Though aware of the sexual harassment complaint procedure, the employee did not complain to any superior.  Although she ultimately got the promotion, she quit.
Types of Sexual Harassment
In 1986, the Supreme Court held that sexual harassment is a form of sex discrimination, and is prohibited by the Civil Rights Act of 1964.  Since then, two types of sexual harassment have been described by the Court.  A "hostile work environment" exists when an employee feels his or her work environment is hostile due to the pervasive or severe nature of offensive comments, pictures, or practices in the workplace, This was the type of lawsuit brought by the lifeguard.  Or, it may be that an employee is subject to threats of retaliation if sexual commentary or physical advances are rejected.  Such retaliation may include demotion, termination, a less desirable work assignment, or some other adverse employment action.  This has traditionally been referred to as "quid pro quo."  This was the type of lawsuit brought by the salesperson.  However, the Court saw her case as more like a third type of sexual harassment: where a supervisor threatens, but does not carry out, such adverse employment actions.
The New Standard
According to the Supreme Court's recent decisions, where an employee refuses to engage in a type of behavior a supervisor demands, such as sexual favors, and the employee actually suffers retaliation on the job from that supervisor, the employer is absolutely liable.  Ignorance of the illegal behavior by the company is not an excuse. 
With respect to the other two types, the type of sexual harassment itself is not critical to determining the liability of the employer.  The Court focused mainly on whether the employer has a well-circulated sexual harassment policy that the complaining employee unreasonably failed to utilize. 
After the employee proves the sexual harassment took place, the burden shifts to the employer to prove its affirmative defense.  The employer must prove that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," through a clear-cut and effective policy on sexual harassment that was widely publicized to the company's employees so that they were made aware of the complaint process.  Having a policy alone is not enough.  It must be repeatedly communicated throughout the company.  Having employees acknowledge receipt of the policy may help establish this was done.  Effective policies include a "zero-tolerance" philosophy and a grievance procedure for the wronged employee – one which does not require the employee to complain to the very supervisor who is doing the harassing.  Proof that the policy existed and was well-circulated to employees is likely to satisfy the employer's burden of proof for this first element of the affirmative defense.
If this is shown, the employer must also prove the employee "unreasonably 
failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm" -- in other words, the employee never complained though there was a clearly defined method for doing so.  Showing that the employee ignored a well-publicized complaint procedure is likely to be sufficient to satisfy the employer's burden of proof for this second element of the defense.
Thus, in the case of the lifeguard, since employees knew nothing of the sexual harassment policy, the Supreme Court held the employer could not meet the affirmative defense and held it liable for the harassment.  However, in the case of the salesperson, the Court remanded the case to the lower court to determine whether the employee should have the opportunity to frame her case as one of hostile work environment, as the Court felt it was, and so the employer could have the opportunity to raise the affirmative defense to the hostile work environment claim.
The Supreme Court's recent decisions can be seen as good news for both management and labor.  They established a bright line test to let employers and employees know exactly where they stand.  The employer must play an active role in achieving harmony in the workplace, instituting policies and promoting them frequently with training sessions for supervisors andsubordinates.  But the employee must also take steps to mitigate harm by using the employer's complaint procedure and attempting to nip the problem in the bud before he or she is forced to leave the job.





Published Sept. 14, 1998

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