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SUPREME COURT OPENS DOOR TO HARASSMENT SUITS

By: Neil J. Kuenn

Two significant decisions of the United States Supreme Court have opened the door to more sexual-harassment suits and employers may be sued even for acts of harassment they didn't know about.

BACKGROUND

In two long awaited decisions, Burlington Industries, Inc. v Kimberly B. Ellerth and Beth Ann Faragher v City of Boca Raton, the Court has crafted new rules for employer liability which will require vigilance in monitoring employee behavior in the workplace.

The Burlington case involved an employee who quit her job after 15 months as a salesperson allegedly because she had been subjected to constant sexual harassment by one of her supervisors. The supervisor, who had authority to hire and promote employees subject to higher approval, never carried out any tangible job retaliation and, in fact, the employee had been promoted during her tenure. The plaintiff never informed anyone in authority about the supervisor's conduct despite knowing the employer had a policy against sexual harassment.

The Court ruled that under Title VII an employee who refuses the sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions. However, the employer may assert an affirmative defense to the claim.

The employer's defense is comprised of two necessary elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexual harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. This defense will not be available in cases where a supervisor's harassment results in an adverse job action. The employer has the burden of proving the defense.

After adopting the rule in the Burlington case, the Court then applied it to the facts in the Boca Raton case. That case involved a situation where an employee resigned her position as a lifeguard and later brought an action against the City and her supervisors alleging that she had been subjected to a "sexually hostile environment" at work because of the actions of her supervisors. The location of the employee's workplace was separate from the administrative offices of the City and she did not file a complaint with higher management about the supervisor's actions. While the City had a policy against sexual harassment the Court found that it had failed to disseminate it among employees at the plaintiff's location; city officials made no attempt to keep track of the conduct of its supervisors; and the policy did not include a method for reporting complaints against supervisors.

EMPLOYER LIABILITY NOT AUTOMATIC

In both decisions the Court reaffirmed that the liability of an employer in such cases is not automatic. The Court enumerated several factors to be considered before imposing liability or awarding damages.

• An employer may show that it provided an effective mechanism for reporting and resolving complaints of sexual harassment without undue risk or expense to the employee.

• If an employee unreasonably failed to avail himself or herself of the employer's preventive or remedial process, then damages that could have been avoided if he or she had done so may not be recovered.

• If the victim could have avoided the harm, no liability will result against an employer who has taken reasonable care, and

• If damages could reasonably have been lessened no award against an otherwise liable employer should reward a plaintiff for those damages his or her own efforts could have avoided.

In many cases, an employer's cost to defend itself against charges of sexual harassment will be significantly higher since each case will depend upon a factual inquiry into the employer's policy, its effectiveness and the reasonableness of both the employer's and employee's actions in a given situation.

CONCLUSION

The decisions in these cases require that employers not only have a policy against sexual harassment but a procedure for reporting and resolving sexual harassment complaints. There is uncertainty concerning what constitutes an effective mechanism for resolving complaints or whether an employee has acted reasonably. The time and cost of implementing, maintaining, and monitoring will increase but the cost of defending a lawsuit will, most likely, far outweigh such compliance costs. Employers are well advised to review their policies and procedures with these cases in mind.