Recent Developments in Employer Liability for Sexual Harassment

In short, a legal firm and their attorney helped a company win a big case and get a lot of money. The company was sued for selling products that hurt people, but the legal team proved that the products were safe. The U.S. Supreme Court clarified that employers can be held responsible for sexual harassment by their supervisors. There are two types of sexual harassment: “quid pro quo” where a supervisor demands sexual favors in exchange for job benefits, and “hostile environment” where the work environment becomes uncomfortable due to sexual behavior. For “quid pro quo” harassment, the employee must show they suffered a tangible job harm, while for “hostile environment” harassment, the employee does not need to prove a job harm. Basically, for a hostile environment sexual harassment claim to be legally valid, the harassment has to be really bad and happen a lot. It can’t just be some occasional teasing or joking around. The court also clarified that employers can be held responsible for the actions of their supervisors in sexual harassment cases. Kimberly Ellerth, a former salesperson, claimed that she was forced to quit her job because her boss, Ted Slowik, repeatedly harassed her. Slowik was not her direct boss, but he said inappropriate things and made unwanted advances towards her. Even though Burlington had a policy against sexual harassment, Ellerth didn’t tell anyone about Slowik’s behavior until after she resigned. She sued Burlington for discrimination and constructive discharge, but the court’s decision was reversed on appeal. The Supreme Court ruled that if an employee refuses a supervisor’s sexual advances and doesn’t suffer any job problems, the employee can still sue the employer without proving the employer did anything wrong. But the employer can defend itself. The Court said that even though the supervisor made threats, since they weren’t actually carried out, the employee’s claim is about a hostile work environment, not direct harassment. The court looked at the rules for when an employer is responsible for the actions of their employees. They found that a supervisor’s actions are not usually considered the employer’s responsibility, but if the supervisor takes a serious action like firing someone, the employer can be held responsible. The court also said that employers can defend themselves if they have rules against harassment and the employee didn’t use those rules. Faragher, a former lifeguard, sued the city and two lifeguard supervisors, Bill Terry and David Silverman, claiming they created a hostile work environment by touching them inappropriately and making lewd remarks. She did not tell higher management about the harassment. The city had an anti-harassment policy, but it was not communicated to the lifeguards. Two months before Faragher resigned, another lifeguard complained about the supervisors’ behavior and they received reprimands after an investigation. Faragher sued the city and two of her supervisors for harassment at work. The district court held the city responsible because the supervisors’ behavior was bad enough to create a hostile work environment. But the appeals court disagreed, saying the supervisors were not acting as representatives of the city when they harassed Faragher. The Supreme Court reversed the appeals court’s decision, saying the city was indeed responsible because the supervisors’ behavior was made easier by their positions of authority. After the court’s decision in the Meritor case, there was some confusion about when an employer is responsible for sexual harassment in the workplace. The Supreme Court tried to clear up this confusion in the Ellerth and Faragher cases by establishing a few key points:

1. If a supervisor offers work benefits in exchange for sexual favors, the employer is automatically responsible, as long as there is a tangible job consequence. However, if there is just a threat of an adverse job action and nothing actually happens, the employer is not automatically responsible.

2. If a supervisor creates a hostile work environment through their actions, the employer is also responsible, but they can defend themselves using the same defense from the Ellerth case.

3. If the harassment comes from co-workers and not a supervisor, the employer is only responsible if they knew about the harassment and did nothing to stop it.

4. In rare cases, if the harassment helped the employer achieve a goal, they can still be responsible for it.

Overall, these cases made it clearer when an employer is responsible for sexual harassment in the workplace. In conclusion, the Supreme Court cases of Ellerth and Faragher have expanded employer liability for sexual harassment in the workplace. This may lead to a decrease in overall harassment, as it encourages employers to take steps to prevent it. To avoid liability, employers should have a clear anti-harassment policy, provide training for employees and supervisors, and carefully review any actions that could lead to a negative impact on an employee’s job. It’s important for employers to do thorough background checks before hiring or promoting supervisors to make sure they won’t commit harassment. If there are allegations of harassment, employers might need to suspend the accused person and pay them while they’re off work. Employers could also consider getting an agreement from supervisors promising not to harass anyone, and protecting the company if the agreement is broken. These steps can help create a safer and fairer work environment. Jason L. Gunter and Tammie L. Rattray are lawyers specializing in labor and employment defense in Tampa. They focus on defending against claims of sexual harassment in the workplace. Both have impressive academic backgrounds and are experts in Title VII litigation.

Source: https://www.floridabar.org/the-florida-bar-journal/recent-developments-in-employer-liability-for-sexual-harassment/