October 1998

Workplace Labor Update - The Supreme Court Speaks – October 1998

8 min

On June 26, the Supreme Court issued two decisions, Ellerth v. Burlington Industries and Faragher v. City of Boca Raton, that changed dramatically the ground rules in sex harassment cases. Specifically, the Court has answered long unsettled questions about when an employer is to be held responsible for sex harassment in the workplace.

By way of background, in 1980, the Equal Employment Opportunity Commission published guidelines providing that sex harassment violates Title VII of the Civil Rights Act of 1964. The EEOC's guidelines broadly defined illegal sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" when: (1) submission to such conduct is either explicitly or implicitly a term or condition of an individual's employment; (2) submission to or rejection of such conduct is used as the basis for employment decisions; or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or of creating an intimidating, hostile, or offensive workplace. Consistent with the EEOC guidelines, courts construing sexual harassment claims recognized two distinct categories of workplace sexual harassment. The first category, called quid pro quo sex harassment, occurs when a supervisor demands sexual favors in exchange for improved working conditions, favorable reviews, raises, or promotions. The second category, termed hostile or offensive work environment, includes unwelcome, demeaning or sexually related behavior and language that creates an intimidating or offensive work environment.

Case law involving sex harassment claims focused on the type of harassment, whether it was quid pro quo or hostile work environment. If the harassment was quid pro quo, employers were held strictly liable for the harassment. If the harassment was labeled hostile work environment, the employee could prevail only if the harassment was sufficiently pervasive and the employer knew or should have known of the harassment and failed to take prompt remedial action. Employers who took prompt remedial action upon learning of such harassment usually were insulated from liability. It is this concept -- when an employer should be held responsible -- that the Supreme Court has now addressed.

The Supreme Court's recent decisions have been widely heralded by employee advocates, but the decisions may actually be more helpful to employers because they provide much needed guidance. It is also questionable whether the rulings will actually alter the results of many cases. The Supreme Court's rulings do, however, create powerful new incentives for employers to adopt a sex harassment policy, to communicate that policy to supervisors and employees, to train supervisors, and to effectively respond to complaints of harassment. This article will discuss the guidance provided by these new cases.

Facts of the Cases

Kimberly Ellerth, the plaintiff in Burlington, worked as a salesperson for Burlington Industries. Ellerth claimed that she was harassed by her immediate supervisor's boss, a mid-level manager. This individual made boorish and offensive remarks including suggestions that Ellerth needed to "loosen up" and hints that he could make her work life either easy or hard. Ellerth did not tell anyone in authority about the manager's conduct, even though she was aware that Burlington had a policy prohibiting sexual harassment and a complaint procedure for reporting such harassment. In Boca Raton, Beth Ann Faragher, a lifeguard for the City of Boca Raton, sued her two immediate supervisors and the City for allowing a sexually hostile atmosphere to exist which included uninvited offensive touching and lewd and derogatory comments about women. The City had a sex harassment policy, but had not distributed the policy to the lifeguards or supervisors working in the marine safety section of its Parks & Recreation Department where Faragher worked. Faragher, like Ellerth, had not officially reported the harassment of the two supervisors to the City.

In both cases, the principal issue was whether the employer was liable for the harassment by a supervisor even though the employer was unaware of the supervisor's unauthorized conduct. The appeals courts dismissed the claims of the employees because the employers did not know about the harassment. The Supreme Court disagreed, and for the first time announced that an employer may be liable for sex harassment by its supervisors even if it was unaware of the harassment.

The Supreme Court's Ruling

Reviewing case law governing employer liability, the Court stated that the emphasis of the parties and lower federal courts on the type of harassment — whether it be quid pro quo or hostile work environment — was misplaced. Likewise, the Court disagreed with those cases that have held that because illegal harassment is not part of a supervisor's job, an employer is not liable unless it knew or should have known about the conduct and took no steps to stop it. While acknowledging that sexual harassment is outside the scope a supervisor's job duties, the Court nevertheless found that holding employers liable for known and unknown supervisory harassment is appropriate because the conduct is made possible or facilitated by the existence of the supervisory authority. Thus, the Court reasoned, when a person with supervisory authority discriminates in the terms and conditions of a subordinate's employment, his actions necessarily draw upon his superior position. This prevents employees from checking the abusive conduct in the same way that they might deal with abuse from a co-worker. The Court further reasoned that an employer has a greater opportunity to guard against misconduct by supervisors than by co-workers and that employers have a greater incentive to screen, train, and monitor the performance of supervisors.

Accordingly, the Supreme Court held that an employer is liable for a hostile environment created by a supervisor with immediate (and successively higher authority) over the harassed employee irrespective of the employer's actual knowledge of the conduct. If the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment, no defense is available to the employer. If no tangible employment action is taken, the employer may raise an affirmative defense to liability. The defense contains two elements. First, the employer must prove that it exercised reasonable care to prevent and promptly correct sexually harassing behavior. For all but the smallest of employers, this usually will require proof that the employer had a written sex harassment policy with an effective complaint procedure, which was communicated to employees. Second, the employer must prove that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to avoid harm otherwise. This means that the employee must attempt to mitigate any harm occasioned by the harassment by reporting it. The Court stated that, generally, an employee's unreasonable failure to use an employer's complaint procedure will protect the employer from liability.

Limiting Liability for Sex Harassment Claims

While making it easier for employees to prove sex harassment claims, the decisions of the Supreme Court in Burlington and Boca Raton provide useful guidance for employers in limiting potential liability. The good news of these decisions is that, in general, conformity with them should not require a complete revamping of a responsible employer's rules, but simply a review and, as appropriate, a reinvigoration of them.

The Court's decisions do not mean that an employer is absolutely liable for all improper behavior. To be actionable, the harassment must be severe or pervasive. Simple teasing, off-hand comments, and isolated incidents of harassment, unless very serious, will generally not constitute actionable harassment. Of special significance is the Court's pronouncement that harassed employees are obligated to take some steps to protect themselves and minimize the harm from sexual harassment. This requirement, according to the Court, is designed to encourage employees to report harassing conduct before it becomes severe or pervasive, thus serving Title VII's deterrent purpose and refusing to reward employees for what their own efforts could have avoided.

The rulings make clear that, as a first step, prudent employers must have an effective policy prohibiting sex harassment in the workplace. Generally, the policy should be written and should include a clear mechanism for raising claims of harassment that will enable the employer to promptly investigate and, as appropriate, remedy such claims. Although not expressly discussed in the decisions, an effective policy should include: (1) a clear expression that employees making complaints will be protected from retaliation; (2) appropriate assurances (but not guarantees) of confidentiality; and (3) more than one avenue of presenting complaints so that the employee is not forced to complain to his or her supervisor if that individual is the subject of the complaint. When a policy does not provide such mechanisms, an employee's failure to use the complaint system may not be viewed as unreasonable and, thus, may defeat the employer's defense.

The creation of an effective, written policy is not enough. Boca Raton makes it clear that the failure to communicate the policy to employees, including supervisors, will prevent all but very small employers from successfully defending a harassment claim. Accordingly, employers should ensure that their policy is communicated to employees. To enhance the effectiveness of the policy and to sensitize employees to the issue, employers should conduct training sessions, especially for supervisors, on the types of comments and conduct that might be deemed to constitute unlawful harassment. In this connection, employers also should educate supervisors on the employer's procedures for responding to harassment claims, as well as anti-retaliation protections in the policy. Because of the emphasis placed by the Supreme Court on ensuring dissemination, prudent employers should consider having employees and supervisors acknowledge in writing their receipt and understanding of the employer's policy.

Employers should also develop a policy for taking appropriate action against those guilty of sexual harassment. Harassment should be treated as a major disciplinary event so that, depending on the circumstances and the degree of harassment, the offender will be subject to appropriate discipline, including discharge.

The decisions in Burlington and Boca Raton provide new impetus for employers to review their sex harassment policies and to ensure that the policies are effective and understood by all employees. By combining a well-conceived policy with effective education and enforcement, employers can go a long way toward restricting potential liability. Given the dollars involved and the impact on employee morale, such steps are well worth the effort.