Ever since
the Supreme Court ruled 12 years ago that workers could sue for sexual
harassment under Federal Civil Rights laws, the court has failed to
provide lower district court guidance for determining under what
circumstances employers should be held liable for the sexual harassment
committed by supervisors.
On June 26,
1998, the Justices broke their longstanding silence by handing down two
landmark decisions establishing a simply worded set of standards that
lets employers and employees know just what they have to do and what
they have to prove in the area of sexual harassment.
In the first
of the 7-2 rulings, a case involving a lifeguard for the City of Boca
Raton, Florida (Faragher v. City of Boca
Raton) who was repeatedly subjected to sexually harassing conduct
and threats by her supervisors, the high court rejected the City's claim
that its top officials didn't know supervisors had created a sexually
hostile work environment for female lifeguards.
The Court
ruled that ignorance is not a defense and that the City of Boca Raton
was obligated to pay damages because it failed to exercise control over
the guilty supervisors, didn't disseminate its anti-harassment policy
and gave employees no ready avenue for complaining about mistreatment.
The second
case involved Kimberly Ellerth, a Chicago employee of Burlington
Industries (Ellerth v. Burlington
Industries) whose manager threatened to punish her for rebuffing his
persistent sexual advances.
Ellerth not
only failed to report the manager's conduct to upper management, but she
suffered no actual retribution or financial consequences and was even
offered a promotion.
The court,
nevertheless, found that she suffered discrimination and is entitled to
compensation, unless the company can show it took reasonable care to
prevent the harassment and that she unreasonably failed to use the
company's complaint procedure. The Court further indicated that
harassment is defined by the ugly behavior of the manager, not by what
happened to the worker subsequently.
A third
historic decision rendered by the Supreme Court on June 22, 1998, was
Gebser v. Lago Vista Independent School
District. In this case a 15 year old ninth grader was allegedly lured
into a 6 month long sexual relationship with one of her teachers.
In a deeply
divided 5-4 vote, the court ruled that the nation's school districts
cannot be held responsible when teachers sexually harass or abuse
students if administrators did not know about the misconduct. The court
stated that "damages may not be recovered...unless an official of the
school district, who, at a minimum, has authority to institute
corrective measures on the district's behalf, has actual knowledge of
and is deliberately indifferent to the teacher's misconduct." Justice
Sandra Day O'Connor, while recognizing that the "teacher's conduct is
reprehensible and undermines the basic purpose of the educational
system," nevertheless, wrote "Until Congress speaks directly on the
subject, we will not hold a school district liable in damages under
Title IX for a teacher's sexual harassment of a student absent actual
notice and deliberate indifference."
This
decision seems to directly contradict the court's rationale in deciding
the Faragher and Ellerth cases. However, they are clearly
distinguishable in that both Faragher and Ellerth were decided under
Title VII which strictly prohibits discrimination in the workplace,
while Gebser was filed under Title IX, the Federal Educational Law.
This statute
is essentially a school funding law, which "encourages" schools not to
discriminate and focuses exclusively on a school setting involving
teachers and students.
THE NEW
GUIDELINES FOR SEXUAL HARASSMENT
From the
employee standpoint:
1. If an
employee is sexually harassed by a supervisor and suffers some tangible
job detriment (i.e. fired, demoted, given an undesirable reassignment)
then the employer will be held legally responsible for the harassment,
even if company officials did not know about it or had strong
anti-harassment policies in place.
2. If an
employee is sexually harassed by a supervisor but suffers no tangible
job detriment, then the employer will still be held responsible unless
the employer can prove:
That it used
"reasonable care" to prevent harassment through effective policies and
complaint procedures.
That the
employee "unreasonably failed" to make use of the company's complaint
procedures.
That if the
employee had complained the harassing conduct would have stopped.
3. Any
employee believing that they are being sexually harassed should report
the conduct through the company's complaint procedure. If there isn't a
complaint procedure in place, the employee should notify, in writing,
both their supervisor (even if he or she is the harasser) and top
management officials.
From the
employer standpoint:
The Supreme
Court in these rulings has provided employers the incentive to reduce
the incidence of and legal liability to sexual harassment suits by
instituting comprehensive anti-harassment policies. These policies
should provide:
A
clearly-worded statement that sexual harassment in the workplace is
strictly prohibited.
The "legal
definition" of sexual harassment as set forth by the EEOC with examples
of what type of conduct could be construed as sexual harassment.
A variety of
channels for employees to report sexual harassment, so that they are not
required to report harassing conduct exclusively to their immediate
supervisor, who may be the harasser.
For the
training of supervisors and education of employees as to the meaning of
the company's sexual harassment policies, what to do when complaints are
reported and how they will be promptly investigated. This can be
accomplished through seminars and/or video presentations.
A statement
by the employer that all complaints will be promptly and thoroughly
investigated and those "found guilty " of violating company policies
will be fired.
For the
posting of company policies in a conspicuous locations such as bulletin
boards, dressing areas, lunch rooms.
Disseminating copies of the company's policies to every employee
requiring written acknowledgment of their receipt.
Give
employees with the ability to participate in the drafting of company
sexual harassment policies through employee selected committees, hot
lines, suggestion boxes, etc.
