Clark Hill PLC

Articles

Clarifying Supervisor Sexual Harassment

June 06, 1999-The United States Supreme Court recently decided two sexual harassment cases involving supervisor conduct which provide helpful guidance on how employers may prevent liability and protect employees from a discriminatory work environment. The cases, Burlington Industries, Inc v Ellerth and Faragher v City of Boca Raton, determine when an employer may be responsible for a hostile work environment caused by a supervisor's sexually harassing conduct. In both cases, the former employees resigned after a series of sexually based comments and conduct by their supervisors.

First, the Court affirmed that where a supervisor takes "tangible employment action" against a subordinate who refuses sexually related demands or behavior, the company will generally be automatically responsible whether or not upper management knew, should have known, or approved of the supervisor's behavior. A tangible employment action is a significant change in the employee's status and includes decisions to hire, fire, failure to promote, reassignment with significantly different responsibilities or decisions causing a significant change in benefits. In other words, if an employee can show he/ she suffered economic injury from a supervisor's discriminatory decision (which would include a decision to retaliate against a subordinate for refusing sexual liberties) the company will usually be automatically responsible for the damages caused by that discriminatory decision. It is important to note that a supervisor making a discriminatory business decision may also be individually liable to the injured employee under state law.

Second, even in situations where the supervisor did not make a discriminatory decision having a tangible or economic effect on a subordinate's employment, the company may still be responsible for any emotional or other harm to an employee caused by a supervisor's harassing conduct. These situations usually arise when the supervisor engages in sexually based inappropriate behavior creating a "hostile work environment" but which does not result in any economic loss or tangible job consequences. There is no established list of the type of supervisor behavior which would create a sexually hostile work environment, as the Courts generally review the facts on a case-by-case basis under the totality of circumstances. The conduct generally must be severe and pervasive enough to taint the workplace and create an abusive working environment.

For example, in the Faragher and Burlington cases, evidence existed that the supervisors' conduct in each case created a sexually hostile working environment for subordinate female employees. In one case, involving claims by a lifeguard for the City of Boca Raton, Florida, the supervisors engaged in uninvited offensive touching, repeated lewd remarks about the female employee's body and often spoke of women in offensive terms. In a second case, involving claims by a former salesperson for Burlington Industries, the supervisor frequently threatened to deny a female subordinate tangible job benefits if she refused his sexual liberties, but he never carried through with the threats (in fact, he ultimately promoted the woman). That supervisor also repeatedly made "boorish and offensive remarks and gestures" toward the female subordinate.

Third, the Supreme Court clarified that "simple teasing, offhand comments and isolated incidents (unless extremely serious)" will not amount to a sexually hostile work environment as the civil rights law was not intended to be a "general civility code" for the workplace. In other words, the sexual harassment law was not intended to make "the ordinary tribulations of the workplace, such as sporadic use of abusive language, gender-related jokes, and occasional teasing" actionable.

Fourth, and highly significant to employers, the Supreme Court concluded that even if a supervisor engaged in behavior creating a sexually hostile work environment, the company could avoid liability if it proved it reasonably tried to prevent and correct promptly any sexually harassing behavior and the complaining employee unreasonably failed to take advantage of the company's preventative or corrective opportunities or to avoid the harm. In short, although finding that employers are nearly automatically responsible for the effects of a supervisor's sexually harassing conduct, the Court created a defense for proactive employers.

Generally, a company acts reasonably in attempting to prevent and correct promptly any sexually harassing behavior if it has a written antiharrassment policy with an effective complaint procedure containing a mechanism to bypass any harassing supervisors, which policy is distributed to all employees and is actually enforced by the company. In the case involving the Boca Raton lifeguard, the Supreme Court concluded the above defense was not available to the City of Boca Raton because its sexual harassment policy was never distributed to entire groups of employees, it made no attempt to keep track of the conduct of its supervisors and no established procedure existed where threatened employees could bypass harassing supervisors in registering complaints.

By the same token, a complaining employee will generally be considered to have acted unreasonably if he/ she fails to take advantage of the employer's effective and properly disseminated complaint procedures. If there is a good mechanism to internally complain and the employee ignores it, he/she may be precluded from holding the company liable for the effects of a supervisor's harassing behavior. Of course, as noted above, if the supervisor's harassment results in a tangible employment action against the employee (such as firing, demoting, significant change in benefits or reassignment,etc.), which typically occurs when a supervisor carries through on threats to retaliate if the employee does not accept sexual advances, the defense is not available and the company is strictly responsible for the supervisor's abuse of power.

What do the Faragher and Burlington cases mean to employers? The Supreme Court's recent statements about sexual harassment remind employers they should be proactive in preventing workplace harassment and discrimination and, by doing so, they may simultaneously reduce their legal exposure. Due to the significant potential for supervisors, managers and directors to automatically bind the company to liability under current sexual harassment law, focus on the following is warranted:

  • Supervisors should be trained to recognize, and appropriately respond to, sexual harassment. It is critical that an employer have written nondiscrimination and nonharassment policies. The policies should be unambiguous and contain a complaint procedure with a mechanism to bypass harassing supervisors. Confidentiality and nonretaliation provisions are imperative.

  • Supervisors should be required to know the employer's nondiscrimination and nonharassment policies and complaint procedures. Training regarding those policies and procedures should be provided and monitored.

  • Supervisors should be held accountable for any personal inappropriate behavior which is, or could be construed to be harassment.

  • The employer's written nondiscrimination, nonharassment policies should be distributed to all employees and documentation of such distribution, through acknowledgment forms or signoff sheets, is critical.

  • Nondiscrimination and nonharassment policies should be periodically redistributed to all employees with appropriate documentation of distribution. Effort should be made to ensure that new employees are provided with a copy of the policy.

  • The employer's nondiscrimination and nonharassment policies and complaint procedures should be appropriately implemented.