At the end of its last term, the U.S. Supreme Court issued two rulings that offer insight about employer liability for sexual harassment. The decisions (Faragher v. City of Boca Raton, No. 97-282, and Burlington Industries Inc. v. Ellerth, No. 97-569) were both hailed and condemned-hailed for establishing new rules for such cases, and condemned for encouraging employees to sue over any perceived indignity, real or imagined.
Based on what has appeared in the popular press, answer true or false to these statements:
1. The Supreme Court now has made employers absolutely liable for sexual harassment, even if they take immediate corrective action.
2. Even the slightest sexually suggestive conduct at work will result in the employer paying punitive damages.
3. Employers now are liable for sexual harassment-even if they had no knowledge of the offensive conduct.
Despite what you may have read, all three statements are false.
It is ironic that these cases, which do little more than reaffirm long established guidelines, have generated so much interest. While there is no cause for alarm, employers are understandably anxious to do whatever they can to shield themselves from further exposure, particularly because heightened public awareness may prompt more employees to file charges of sexual harassment, in much the same way that the Anita Hill/Clarence Thomas spectacle opened the floodgates for such charges in 1991.
The fact remains that while neither case offers any genuine bombshells, both decisions offer guidelines for responsible employers. These are:
- If you don’t already have a written policy against sexual harassment that includes a clearly stated procedure for filing a complaint, get one.
- Once you have a policy and procedure, make sure everyone knows about them.
- Be prepared to investigate every complaint in accordance with your procedures.
- Document every employment decision.
Background and rulings
The Faragher case illustrates virtually everything that an employer should not do. In that case, the employer-the city of Boca Raton, Fla.-adopted a sexual harassment policy in 1986. The policy was stated in a memorandum from the City Manager addressed to all employees; however, the city failed to disseminate its policy among employees of the Marine Safety Section. The result: Many employees were unaware of it.
The plaintiff, Faragher, did not complain to higher management about the offensive behavior she suffered at the hands of her supervisors. That behavior included lewd remarks, offensive references to women and allegations that one supervisor said he would never promote a woman to the rank of lieutenant. Another supervisor said to Faragher: “Date me or clean the toilets for a year.”
While Faragher did mention her supervisors’ behavior to one management employee, she did not consider this a formal complaint to a supervisor but rather a conversation with someone whom she held in high esteem.
Other female lifeguards had similar informal talks with the same manager. Because this individual did not feel it was his place to do so, no complaints were relayed up the administrative ladder. Not surprisingly, the Supreme Court concluded-as a matter of law-that Boca Raton did not exercise reasonable care to prevent the harassing conduct of the supervisors. (The lesson for HR professionals: All managers should always and immediately report any allegations of harassment.)
In the Ellerth case, Kimberly Ellerth quit her job after 15 months as a salesperson in one of Burlington Industries’ divisions. She allegedly quit because she had been subjected to constant sexual harassment by one of her supervisors, Ted Slowik. Slowik was a mid-level manager who had authority to hire and promote employees, subject to higher approval. He was not considered a policy maker.
Against a background of repeated boorish and offensive remarks and gestures allegedly made by Slowik, Ellerth alleged that Slowik threatened to deny her tangible job benefits in three separate incidents. Despite the fact that she refused all of Slowik’s advances, she suffered no tangible retaliation and was, in fact, promoted. Moreover, she never informed anyone in authority about Slowik’s conduct, despite knowing that Burlington had a policy against sexual harassment.
The issue in this case centered on this legal point: Can an employee sue for harassment even if her alleged harasser never made good on his threats? The Supreme Court ruled that employees who refuse the unwelcome and threatening sexual advances of a supervisor-yet suffer no adverse, tangible job consequences-may recover damages from the employer. What’s more, employees are not required to show that the employer was negligent or otherwise at fault for the supervisor’s actions. The court did, however, outline a valid defense that employers can use against such claims. That defense has two parts:
Part I: The employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior.
Part II: The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
Burlington may have satisfied the requirements of this defense because it had a policy in place and Ellerth failed to use it. As a result, the high court remanded the Ellerth case to the lower court to determine if Burlington could prove its defense. By contrast, Boca Raton could not hope to show that it had a policy in place. Therefore, there was no need to remand the case to trial because the city could not meet its burden of proof.
The good, the bad
Like most Supreme Court decisions, these rulings offer good news and bad news to employers. The bad news: If a supervisor engages in classic quid pro quo conduct (i.e. demanding sexual favors as a condition of employment) and the employee suffers some job detriment as a result, the employer will be held liable for all damages-even if the employee never complained about the threats.
However, this is not a new development; employers have been held liable for all sorts of discrimination without necessarily being put on notice. For example, if a supervisor fires an African-American employee and discrimination is proven, it does not matter that the employer had no advance knowledge that the termination was racially motivated.
Employers are expected to train their supervisors and exercise sufficient control over hiring and firing decisions to ensure that illegal factors do not come into play. When the employer fails to do so and discrimination is proven, the employer is liable. The fact that the same rule applies in sexual harassment cases is not surprising.
The good news for employers is that what used to be called unfulfilled quid pro quo cases (where a threat may have been made but the employee did not suffer any negative effects for rejecting a harasser’s sexual advances) will now be treated as a case of hostile environment. As such, the employer will be able to defend on a variety of grounds. These include:
- The alleged conduct was neither severe nor pervasive.
- The employer had a policy and procedure and the employee failed to use it.
- When the employee complained, the employer took appropriate corrective action.
Again, these steps do not represent any major change from the way responsible employers have always treated sexual harassment claims-prompt investigation followed by appropriate corrective action.
Longer term effects
Interestingly, neither Faragher nor Ellerth offer any guidance on issues that occupy most of the HR professional’s time and energy, such as:
- What constitutes a hostile environment?
- What is considered appropriate corrective action?
In passing, the court seemed to downplay the significance of co-worker harassment (as opposed to harassment by a supervisor), and it actually included language that may raise the bar as to when conduct is serious enough to state a claim under Title VII of the Civil Rights Act of 1964.
For example, the court stated that discourtesy or rudeness should not be confused with harassment; a lack of sensitivity does not, by itself, amount to actionable harassment; conduct must be extreme to amount to a change in the terms and conditions of employment; and Title VII does not prohibit “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.”
A recurring point in these opinions is that “simple teasing,” off-hand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the “terms and conditions of employment.”
For what it’s worth, the Supreme Court may have signaled that monetary compensation under Title VII is intended only for those who can prove that they suffered a real injury and that attempts to trivialize the meaning of harassment are to be discouraged.
The court was remarkably clear on one point: Title VII should be seen more as a means of preventing harm to employees than a way of providing compensation to victims. For that reason, the court repeatedly stressed that employers must create and implement real world strategies for preventing workplace harassment. Failure to do so will result in liability, while following that rule provides employers with a strong defense.
The more things change …
Given all the hoopla surrounding these decisions, it is remarkable how little they have changed the legal landscape. Most employers have had sexual harassment policies in place for years. To prevent or defend against hostile environment claims, all they need to do is make sure that the policy is distributed and explained to each employee and that the procedures are effective and followed consistently.
Preventing or defending against “fulfilled” quid pro quo claims presents a greater challenge. The first step must be to make sure all employees understand that they are not expected to tolerate sexual demands on the job and to mandate that all such demands or threats be reported immediately. If a threat is reported before it is carried out, the employer still has a chance to remedy the situation and perhaps avoid legal liability.
It bears noting that even a classic quid pro quo case requires the plaintiff to prove that the adverse employment decision was caused by her refusal to submit to a supervisor’s sexual demands. These cases are therefore similar to every other discrimination case in which employees must prove they were treated differently because of some protected characteristic, such as age, race or disability.
Employers typically defend against such claims by showing that they had a legitimate business reason for making the decision. The same rule applies in quid pro quo cases.
Thus, in addition to educating employees and training supervisors, a second line of defense for employers would be some system of checks and balances to ensure that no supervisor can unilaterally make material employment decisions and that all such decisions are documented and reviewed in advance. If the employee later claims that the decision was a reprisal for failing to submit to the supervisor’s sexual demands, the company will be in a better position to challenge that allegation by identifying and substantiating the business reasons for the decision.
Employers should take this opportunity to audit their policies and procedures and do a bit of refresher training on the do’s and don’ts of workplace behavior. Beyond that, there is no reason to expect that much has changed, or will change, as a result of the Supreme Court’s latest pronouncements. Companies still must be vigilant in all aspects of the employment relationship, but that has not been news for a very long time.
Author’s Note: This article should not be construed as legal advice or as pertaining to specific factual situations.
By Debbie Rodman Sandler