The Perils of (Reporting and) Not Reporting Sexual Harassment

Summary: A man was injured at work and hired a lawyer from a big law firm to help him get compensation. The lawyer didn’t do a good job and the man lost a lot of money. He sued the lawyer and won the case. Three years ago, an article was published in The Florida Bar Journal about employer liability for sexual harassment in the workplace. The article said that employers could be held responsible for the actions of their supervisors. However, recent court opinions have changed this. One important case is Faragher v. City of Boca Raton, where two female lifeguards were harassed by their male supervisors. The court found that the city was responsible for the supervisors’ actions, even though the lifeguards had little contact with city officials. This case has changed the understanding of employer liability for sexual harassment. Two female lifeguards were touched and subjected to offensive behavior by their supervisor and another official. They didn’t report it to their management. They talked to another supervisor, who didn’t report it either. After they left their jobs, one of them finally wrote a letter a year later to complain, and the city investigated and disciplined the supervisors. In 1992, Faragher sued the city for sexual harassment and won $1 in damages. The court found that her supervisors created a hostile work environment and held the city responsible. The city appealed and a higher court ruled that the city wasn’t responsible for the supervisors’ actions. They said the city didn’t know about the harassment or should have known about it. The city argued that it couldn’t be responsible for the actions of the two men because there was no evidence they were acting on behalf of the city when they harassed Faragher. They also said there wasn’t enough evidence to show the city knew about the harassment. The court had to decide if the city was responsible for sexual harassment by its employees. The court said the city could be responsible if it knew about the harassment and didn’t do anything. The court also said the city could be responsible if the harassment was part of the employee’s job, or if the city made it easier for the employee to harass someone. The court ultimately decided that the city was not responsible for the harassment in this case. Terry and Silverman harassed Faragher at work, but the court found that their actions were not within the scope of their jobs. This means the city they worked for could not be held responsible for their actions. The court said that the harassment was not done to perform any service for the city, and there was no evidence that their supervisors threatened Faragher’s job if she didn’t go along with their behavior. So, the city was not responsible for what Terry and Silverman did. The court looked at whether the city was responsible for the actions of Terry or Silverman because they knew about the harassment or should have known because it was so widespread. The court said that an employer can be responsible for sexual harassment if they knew about it and didn’t take quick action. To prove that the city knew about the harassment, the lifeguards needed to show that they complained to higher management. The court said that complaining to Lieutenant Gordon wasn’t enough because he didn’t count as “higher management” in the city. The court found that the employer can be held responsible for sexual harassment even if the victim didn’t report it, as long as the harassment was pervasive enough for the employer to know about it. The court said that the level of harassment needed to show an abusive work environment is the same level needed to prove that the employer knew about it. However, the court also said that just because the work environment is abusive doesn’t mean the employer automatically knew about it. In this case, the court found that the city had no knowledge of the harassment because there was no evidence that the city should have been aware of it. The court made a decision in a case, with Judge Barkett disagreeing with the majority’s ruling. She thinks the city should be held responsible for the harassment that happened, even if they didn’t know about it. She also criticized the majority for ignoring the severity of the harassment and for saying the city didn’t need to know about it. She believes the city’s supervisor knew about the harassment and so the city should be held responsible. Judge Barkett believes that the city is responsible for the actions of Terry and Silverman because they were given a lot of authority over the lifeguards and the work environment. She thinks the city didn’t do enough to prevent the harassment that happened. This means that the city can be held responsible for what Terry and Silverman did. In addition, Judge Tjoflat wrote a separate opinion agreeing with part of the majority’s decision while disagreeing with the rest. He believed that the city should be held responsible for the sexual harassment experienced by Faragher because her supervisor, Bill Terry, knew about it and did not stop it, and the city put Terry in charge of the workplace. The judge was worried that the city didn’t tell its employees about its sexual harassment policy or who to complain to, so the city should be held responsible for the harm suffered by the employee. The judge thought that not communicating the policy would make employees think they couldn’t report harassment. Another judge agreed with this opinion. The majority decision is flawed because it says the city isn’t responsible for the actions of its employees, but the city did give them the authority to handle complaints from employees, which would mean the city knew about the harassment. This decision could encourage people not to report incidents, including harassment. The court didn’t consider the fact that the City of Boca Raton didn’t clearly communicate its sexual harassment policy to its employees. This made it hard for Faragher and Ewanchew to know how to report harassment and if they would be protected from retaliation. Because of this, the court should excuse their failure to report the harassment. Anita Farley was a dental assistant who claimed that Dr. Thomas Gann, a dentist at the same clinic, made unwelcome sexual advances and remarks towards her from 1989 to 1994. She told him she didn’t like it, but he didn’t stop. Two other female dental assistants also said Gann behaved inappropriately towards them. Farley accused her boss, Dr. Gann, of making sexual advances towards her. The company investigated and found that while his behavior was inappropriate, it didn’t meet the legal definition of sexual harassment. They gave him a warning and took away his supervisory duties. Farley didn’t agree with the result and refused to go back to work. After being on leave for five months, she was fired. Farley sued her employer for sexual harassment and retaliation, but the court ruled in favor of the employer. The court said the employer wasn’t responsible for the harassment, and they didn’t know about it. They also said the employer handled Farley’s complaint well, and there was no proof that her firing was because she complained. The court reviewed a case of sexual harassment at work and found that the employer wasn’t at fault because they had a clear policy against it, and they took complaints seriously. The court said that if a company has a good policy against harassment that employees know about and they enforce it, they can’t be held responsible for harassment that happens. This is different from another case where the company didn’t have a clear policy and the employees didn’t know who to report to. The court ruled that Boeing was not responsible for the actions of an engineer who harassed two secretaries. The court found that Boeing took proper action when the secretaries complained about the engineer’s behavior, and therefore Boeing was not held liable for the engineer’s actions. Ms. Allen was harassed at work by her supervisor, Mr. Wood, who wrote sexual notes to her and touched her inappropriately. She never reported the harassment to her company, Tyson Foods, until she threatened legal action. When Tyson investigated, they couldn’t prove her complaint so they didn’t take any action against Mr. Wood. Instead, they transferred Ms. Allen to another plant, but she still felt harassed. She ultimately quit her job. The court dismissed her case because she didn’t report the harassment to Tyson’s management. The court was trying to figure out if the evidence in the case was enough to let a jury decide, or if one side was obviously right. The court said that the plaintiff could prove that her employer knew about the harassment if she complained to higher-ups or if the harassment was so bad that the employer should have known about it. The court said that whether the employer should have known about the harassment was a question for the jury to decide. The court also said that the plaintiff failed to complain about the harassment at first, and when she did, the employer took immediate action. So, the court said that for the employer to be responsible for a hostile work environment, the harassment had to be really bad and the employer should have known about it. The court mentioned some factors to consider when deciding if the employer should have known about the harassment, like how far away the harassment was from the boss, how often it happened, and how long the victims worked there. The court found that there was enough evidence to suggest that there was inappropriate sexual behavior at the Tyson plant. The court also said that there was evidence that the plaintiff, Allen, was harassed by Wood and other employees. The court also said that Tyson might have known about the harassment. So, even if the victim didn’t follow the company’s harassment policy, they can still sue if they can prove that the employer knew about the harassment. If you experience sexual harassment at work, it’s important to report it to someone higher up in the company, not just a manager. In some court cases, employers were not held responsible for harassment because the employee complained to a manager who wasn’t considered “higher management.” It’s also important for employers to have strong anti-discrimination policies and take prompt action if harassment is reported. Ultimately, the issue of whether an employer knew about the harassment is a factual question that should be decided in court, not before. Faragher v. City of Boca Raton is a court case about sexual harassment at work. The court decided that the city was responsible for the lifeguards’ actions because they didn’t have a good policy against harassment. This case might go to the Supreme Court for review. We want to teach our members to do their job well and serve the public. We also want to make the justice system better and learn more about law.

Source: https://www.floridabar.org/the-florida-bar-journal/the-perils-of-reporting-and-not-reporting-sexual-harassment/