Workplace Harassment and Potential Legal Liabilities

There is a common misunderstanding that sexual harassment complaints only occur in large organizations or large metropolitan areas. The fact is that sexual and other workplace harassment complaints can and do occur in all sizes of organizations and all areas of the country.

An employer with 15 or more employees is a covered employer under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, national origin and sex (including sexual harassment). Many states have their own laws prohibiting workplace harassment and thresholds for employer coverage, and some such laws cover employers with fewer than 15 employees. Regardless of size, sexual harassment claims can be damaging to an organization in terms of image, monetary liability and employee morale.

Understanding the Types of Sexual Harassment Employers can avoid sexual harassment in the workplace only if they are knowledgeable about the law. The Equal Employment Opportunity Commission (EEOC), which enforces Title VII, provides guidelines on identifying sexual harassment. Sexual harassment can occur in one of two forms: quid pro quo or hostile environment.

• “Quid pro quo” (the phrase means “this for that”) sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature by a supervisor when submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, or submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual. In other words, quid pro quo sexual harassment is the exchange of job favors for sexual favors.
  
  
• “Hostile environment” sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct has the purpose or effect of unreasonably interfering with an individual's job performance or creating an intimidating, hostile, or offensive work environment.

Sexual Conduct Must Be Unwelcome

“Employers that don't take a complaint of sexual harassment seriously have the real potential of finding themselves in a difficult courtroom battle with the complainant.”

The EEOC views sexual conduct as unlawful only when it is unwelcome. The sexual conduct must be unwelcome in the sense that the employee did not solicit it and the employee regarded the conduct as undesirable or offensive. The conduct must be so objectively offensive as to alter the conditions of the victim's employment. The severity and pervasiveness of the harassment are factors that are considered in determining if the conditions of employment were altered. Of course, if the harassment resulted in a tangible employment action such as demotion, reassignment or salary reduction, the conditions of employment were altered. Employers that don't take a complaint of sexual harassment seriously have the real potential of finding themselves in a difficult courtroom battle with the complainant.

Harassers and Victims Can Be Anyone Sexual harassment is not gender specific. The harasser may be a woman or a man. He or she can be the victim's supervisor, a supervisor in another area, a co-worker, an agent of the employer or a nonemployee. The victim does not have to be of the opposite sex and the victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

Supervisors Act As Agents for the Employer Employers are responsible for the discriminatory acts of their agents and supervisors act as agents for the employer. They have been given the authority by the organization to take actions on behalf of the organization. Because supervisors are in positions of authority, their role in the organization is held to a higher standard. Typically a supervisor would be an individual with authority to approve or recommend tangible employment decisions affecting the employee or would be an individual with authority to direct the employee's daily work activities. A supervisor with immediate authority over the victim or any member of management with successively higher authority that is responsible for any type of sexually harassing behavior in the workplace can be personally liable for their actions. While Title VII does not impose personal liability on supervisors, sexual harassment lawsuits often add tort claims such as battery or infliction of emotional distress, and tort claims do impose personal liability.

Employers Are Liable for Supervisors' Actions Based on 1998 Supreme Court decisions, it is clear that employers are subject to vicarious liability for unlawful harassment by their supervisors. This means employers are responsible for both statutory violations and the intentional torts of their supervisors because supervisors are aided in such misconduct by the authority that the employers assign to them.

Any time a tangible employment detriment occurs as a result of sexual harassment, the employer is liable. Tangible employment detriments can include firing, failure to promote, demotion, undesirable reassignment, a decision causing a significant change in benefits, compensation decisions and work assignments. If no tangible employment detriment has occurred, the employer may be able to avoid or limit liability by establishing an affirmative defense that must include two elements:

• the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and
  
• the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Act Promptly and Make the Harassing Behavior Stop What should an employer do if an employee comes forward and complains that someone connected with the organization has sexually harassed them? The first suggestion is to promptly begin getting to the facts. The key word here is “promptly.” An enforcement agency or a jury will closely scrutinize the steps taken and the time it takes an employer to respond to a sexual harassment complaint. Complaints that are reviewed and resolved quickly are looked upon more favorably than complaints that seem to stretch out over an extended period of time. Second, if harassment has occurred or is occurring, make the harassing behavior stop by taking the appropriate corrective action. The EEOC's guidance on employer liability is “an employer is liable if it knew or should have known of the misconduct, unless it can show that it took immediate and appropriate corrective action.” Prompt consultation with outside counsel is recommended.

What We've Learned From Supreme Court Decisions The Supreme Court has basically told employers what efforts they can take to prevent sexual harassment in the workplace and limit their liability in the event it does occur. Here are two very important steps an employer can take to stay on the right track:

• develop, disseminate, and enforce an effective anti-harassment policy that defines and prohibits sexual harassment and provides clear guidance for employees on how to report complaints of sexual harassment; and
  
• exercise reasonable care to address all complaints through effective investigations and take corrective actions promptly.

A word of caution—don't assume that a well—written anti-harassment policy and complaint procedure will alone satisfy the burden of proving reasonable care. The subsequent actions taken by management will be the determining factor as to whether or not the organization exercised reasonable care.

Anti-Harassment Policy Communication Is Critical Also, the communication efforts taken by the employer will be very important in proving it exercised reasonable care in preventing and correcting sexual harassment in the workplace. Any and all of the following steps should be considered for implementing an effective anti-harassment communication system:

• provide every employee with a copy of the policy and complaint procedure
  
• redistribute the policy periodically
  
• post the policy in central locations
  
• incorporate the policy into employee handbooks
  
• provide training to all employees to ensure they understand their rights and responsibilities

So every employer should have two things: a comprehensive anti-harassment policy, effectively communicated to all employees; and an effective mechanism for receiving, investigating and resolving complaints.

Harassment Is Not Limited to Sex Employers should be aware that harassment complaints that are unlawful are not restricted to sexual harassment complaints, but can include other types of discriminatory treatment on the basis of race, color, religion, national origin, age of 40 or older, disability, etc. The EEOC has always taken the position that the same basic standards apply to all types of prohibited harassment. As such, employers are encouraged to establish anti-harassment policies and complaint procedures covering all forms of unlawful harassment.

This article is not intended to provide legal advice, but is intended to provide sensible advice for employers of all sizes. Employers are encouraged to understand the federal and applicable state laws prohibiting sexual and other forms of harassment in the workplace so compliance can be ensured.