Ever since the Supreme Court ruled 12 years ago that workers could sue for sexual harassment under Federal Civil Rights laws, the court has failed to provide lower district court guidance for determining under what circumstances employers should be held liable for the sexual harassment committed by supervisors.
On June 26, 1998, the Justices broke their longstanding silence by handing down two landmark decisions establishing a simply worded set of standards that lets employers and employees know just what they have to do and what they have to prove in the area of sexual harassment.
In the first of the 7-2 rulings, a case involving a lifeguard for the City of Boca Raton, Florida (Faragher v. City of Boca Raton) who was repeatedly subjected to sexually harassing conduct and threats by her supervisors, the high court rejected the City’s claim that its top officials didn’t know supervisors had created a sexually hostile work environment for female lifeguards.
The Court ruled that ignorance is not a defense and that the City of Boca Raton was obligated to pay damages because it failed to exercise control over the guilty supervisors, didn’t disseminate its anti-harassment policy and gave employees no ready avenue for complaining about mistreatment.
The second case involved Kimberly Ellerth, a Chicago employee of Burlington Industries (Ellerth v. Burlington Industries) whose manager threatened to punish her for rebuffing his persistent sexual advances.
Ellerth not only failed to report the manager’s conduct to upper management, but she suffered no actual retribution or financial consequences and was even offered a promotion.
The court, nevertheless, found that she suffered discrimination and is entitled to compensation, unless the company can show it took reasonable care to prevent the harassment and that she unreasonably failed to use the company’s complaint procedure. The Court further indicated that harassment is defined by the ugly behavior of the manager, not by what happened to the worker subsequently.
A third historic decision rendered by the Supreme Court on June 22, 1998, was Gebser v. Lago VistaIndependent School District. In this case a 15 year old ninth grader was allegedly lured into a 6 month long sexual relationship with one of her teachers.
In a deeply divided 5-4 vote, the court ruled that the nation’s school districts cannot be held responsible when teachers sexually harass or abuse students if administrators did not know about the misconduct. The court stated that “damages may not be recovered…unless an official of the school district, who, at a minimum, has authority to institute corrective measures on the district’s behalf, has actual knowledge of and is deliberately indifferent to the teacher’s misconduct.” Justice Sandra Day O’Connor, while recognizing that the “teacher’s conduct is reprehensible and undermines the basic purpose of the educational system,” nevertheless, wrote “Until Congress speaks directly on the subject, we will not hold a school district liable in damages under Title IX for a teacher’s sexual harassment of a student absent actual notice and deliberate indifference.”
This decision seems to directly contradict the court’s rationale in deciding the Faragher and Ellerth cases. However, they are clearly distinguishable in that both Faragher and Ellerth were decided under Title VII which strictly prohibits discrimination in the workplace, while Gebser was filed under Title IX, the Federal Educational Law.
This statute is essentially a school funding law, which “encourages” schools not to discriminate and focuses exclusively on a school setting involving teachers and students.
THE NEW GUIDELINES FOR SEXUAL HARASSMENT
From the employee standpoint:
1. If an employee is sexually harassed by a supervisor and suffers some tangible job detriment (i.e. fired, demoted, given an undesirable reassignment) then the employer will be held legally responsible for the harassment, even if company officials did not know about it or had strong anti-harassment policies in place.
2. If an employee is sexually harassed by a supervisor but suffers no tangible job detriment, then the employer will still be held responsible unless the employer can prove:
That it used “reasonable care” to prevent harassment through effective policies and complaint procedures.
That the employee “unreasonably failed” to make use of the company’s complaint procedures.
That if the employee had complained the harassing conduct would have stopped.
3. Any employee believing that they are being sexually harassed should report the conduct through the company’s complaint procedure. If there isn’t a complaint procedure in place, the employee should notify, in writing, both their supervisor (even if he or she is the harasser) and top management officials.
From the employer standpoint:
The Supreme Court in these rulings has provided employers the incentive to reduce the incidence of and legal liability to sexual harassment suits by instituting comprehensive anti-harassment policies. These policies should provide:
A clearly-worded statement that sexual harassment in the workplace is strictly prohibited.
The “legal definition” of sexual harassment as set forth by the EEOC with examples of what type of conduct could be construed as sexual harassment.
A variety of channels for employees to report sexual harassment, so that they are not required to report harassing conduct exclusively to their immediate supervisor, who may be the harasser.
For the training of supervisors and education of employees as to the meaning of the company’s sexual harassment policies, what to do when complaints are reported and how they will be promptly investigated. This can be accomplished through seminars and/or video presentations.
A statement by the employer that all complaints will be promptly and thoroughly investigated and those “found guilty ” of violating company policies will be fired.
For the posting of company policies in a conspicuous locations such as bulletin boards, dressing areas, lunch rooms.
Disseminating copies of the company’s policies to every employee requiring written acknowledgment of their receipt.
Give employees with the ability to participate in the drafting of company sexual harassment policies through employee selected committees, hot lines, suggestion boxes, etc.