Articles

The cases make it clear that an employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee. When a supervisor's discriminatory act results in a "tangible employment action" against a subordinate, vicarious liability will automatically be imposed upon the employer. This means that the knowledge or conduct of the employer is irrelevant.

A "tangible employment action" is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. A bruised ego is not enough, nor is a demotion without a change in pay or benefits. Vicarious liability is imposed in such situations because the supervisor's status with the employer is what permitted him or her to inflict the economic injury in question. An employee who does not hold a supervisory position ordinarily does not have the capability of inflicting such economic harm upon a co-worker.

But employers also have a new affirmative defense available to them. If the alleged harassing conduct did not result in a "tangible employment action" being taken against the employee, the employer may raise an affirmative defense based upon the employer's adoption of a sexual harassment policy and response to complaints pursuant to that policy. In order to establish the affirmative defense, the employer must show that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. An employer can show that it exercised reasonable care to prevent the harassing conduct if it has a sexual harassment policy and the employees know about the policy and how to implement it.

It is important to recognize that this defense is not available when the supervisor's harassment results in an actual tangible employment action such as discharge, demotion, or undesirable reassignment.

The lesson to be learned from these recent decisions is that merely adopting a written sexual harassment policy is not enough. Employers must take steps to ensure that the policy is enforced. In addition, employers must make sure that all current and new employees are aware that sexual harassment is not allowed. Employers must also adopt a complaint and investigation procedure. Finally, all supervisors should be trained to identify and investigate sexual harassment.

The Supreme Court also decided this year that Title VII applies to same-sex sexual harassment. Title VII's prohibition of sexual harassment in the workplace extends to any kind of sexual harassment which meets the statutory requirements. Harassing conduct need not be motivated by sexual desire.

The central issue in any claim of sexual harassment is whether the conduct at issue constituted discrimination because of sex. Behavior that is so objectively offensive as to alter the conditions of the victim's employment is forbidden. Employers may no longer ignore interactions with sexual overtones between co-workers of the same sex. Now employers must watch for and take action against all objectively offensive behavior with sexual overtones.

It is important for every employer to have a written sexual harassment policy that meets the legal requirements and to take the steps to make sure the policy is enforced. A lawyer knowledgeable in employment law can help you write the policy and the appropriate complaint and investigation procedure. §