Sexual Harassment defense more difficult under new rulings.

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Sexual harassment defense now more difficult under Supreme Court rulings.
Supreme Court rulings
Court changes harassment guidelines
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Sexual harassment defense now more difficult under Supreme Court rulings

By Jim Collison
President
Employers of America

The threat of sexual harassment liability is now greater for you, with the 1998 U.S. Supreme Court rulings.

The two new court rulings in late June 1998 make it even more important than ever before that you adopt and enforce strong policies against sexual harassment. The two cases involved are Burlington Industries v. Ellerth and Faragher v. City of Boca Raton(see story in box below).

The rulings effectively put even more responsibility on you to be aware of possible sexual harassment in your workplace...and to discourage it from happening. With these rulings, you face an even greater risk of sexual harassment actions, lawsuits and resulting legal costs and damages.

Two key questions resulting from the court's rulings: (1) What kinds of behaviors are sexually harassing? (2) When, and under what conditions, is an employer liable for sexual harassment caused by an employee or a supervisor?

To both questions, the court broadened the answers...making it even more difficult for you and your employees to be sure exactly what can be illegal behavior. And the rulings make it more difficult for you to know when, and under what conditions, the employer is liable.

The best answers to the two questions:

Q. What kinds of behaviors are sexually harassing?

A. Any behavior of even a remotely sexual nature, which an employee finds threatening or offensive, or such behavior which is unwanted by the employee...can trigger a sexual harassment charge. (Even NO harassing can trigger damages! See What isn't harassment can cost you.)

Q. When, and under what conditions, is an employer liable for sexual harassment caused by an employee or a supervisor?

A. Under the court's new rulings, an employer can be liable even when the harassed employee fails to inform the employer of the objectionable behavior.

The result of the court's rulings is simple: You, the employer, have an even greater exposure to liability. Any kind of behavior of a sexual nature can be sexually harassing to at least one of your employees. And you can be held liable for the behavior of your supervisors even when you don't condone it...and even when the harassed employee fails to inform you of the objectionable behavior.

Supreme Court rulings

The two sexual harassment cases and the Supreme Court's rulings:

Burlington Industries v. Ellerth. Kimberly Ellerth alleged constant sexual harassment by her supervisor, Ted Slowik. Slowik's alleged threats to retaliate against Ellerth if she rebuffed him were not carried out. Ellerth did not inform anyone in authority at Burlington Industries of the alleged sexual harassment. The Court ruled Ellerth has grounds for an action against Burlington even though she suffered no tangible damage as a result of resisting the alleged harassment.

Faragher v. Boca Raton. Beth Ann Faragher worked part-time as an ocean lifeguard for Boca Raton, FL. She alleged that two supervisors, Bill Terry and David Silverman, repeatedly subjected her and other female lifeguards to uninvited and offensive touching and lewd remarks. Faragher did not complain to higher management. The Court, finding for Faragher, noted that the city had a sexual harassment policy but "completely failed to disseminate its policy among employees...and its officials made no attempt to keep track of the conduct of supervisors Terry and Silverman."

Smart Workplace Practice: The court's decisions put the burden on the employer to prove two things: (1) That the employer takes "reasonable care" to prevent and promptly correct sexually harassing behavior...and (2) that the employee unreasonably failed to prevent or correct the harassment by complaining to management.

So, to defend yourself and your business or organization in a sexual harassment case, here's what you have to do:

(1) You (the employer) must adopt and distribute to all supervisors and employees a strongly-worded policy that tells everyone that (a) sexual harassment is prohibited, (b) gives examples of such prohibited behavior, (c) directs employees on how to inform persons in authority of offending behavior, and (d) pledges prompt investigation of such charges.

(2) You must continually make sure that all supervisors and employees know your policy. Regularly re-inform your supervisors and employees of your policy.

(3) You must train all supervisors and management people in how to identify and investigate sexual harassment. (Consider using an outside third-party to investigate charges.)

(4) You must consistently and aggressively enforce the policy.

Court changes harassment guidelines

Two previous defenses employers had against sexual harassment charges are now obsolete, in light of the 1998 Supreme Court rulings on the topic. These were the "hear no evil, see no evil" and the "one free pass" defenses.

Here's how the court's landmark rulings change the rules:

(1) The "hear no evil, see no evil" defense. If the employer didn't hear about the harassment, the employer wasn't liable.

The court now says, not so. The employer now has the obligation to prevent sexually harassing behavior.

(2) The "one free pass" defense. The harasser could hit on an employee once. If the employee rebuffed the hit, and if the harasser behaved thereafter, there was no risk to the employer.

The court now says, not so. The 1998 rulings send the clear message that if the target of the harassing behavior feels threatened by a "first pass," this can constitute illegal sexual harassment.

Give your supervisor tools, training to protect against sexual harassment, other employee-connected headaches

Give you supervisors and managers the skills and tools to protect themselves and your organization from sexual harassment lawsuits and other employee-related problems and lawsuits. Result: Less risk to your organization. Less stress for you and for your supervisors. You increase your protection by reducing the chances that supervisors' mistakes and misstatements could lead to sexual harassment and other legal actions.

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