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© 1999 Gorman & Williams It is important that businesses have in place and maintain a publicized policy and procedure to prevent, investigate, and correct promptly any sexually harassing behavior. A program of supervisor training on discrimination and harassment is also important. With respect to an employer's liability for sexual harassment, the Supreme Court issued several landmark decisions on June 26, 1998. The Supreme Court decisions contain a comprehensive statement of the current law on sexual harassment. An employer can be liable for sexual harassment because of (1) the employer's negligence, and/or (2) the employer's vicarious liability for the act of its supervisors and management-type employees. ("Vicarious liability" means you are liable/responsible not for what you yourself did but for something someone else did.) Sexual harassment situations are often categorized as either (1) "quid pro quo" whereby the employment complaint is based on carried out threats, or (2) a hostile work environment where the harassment is severe and pervasive. Hostile work environment cases have been sub-categorized into cases where the employee has suffered (1) tangible job actions such as discharge, demotion, or undesirable reassignment, or (2) no tangible employment action. The Supreme Court made clear that an employer is liable for sexual harassment if the employer was negligent. The Court also held that even where the employer is not negligent, the employer could be vicariously liable to a victimized employee even when no tangible employment action has been taken against the employee. However, in this situation, the employer can raise and prove as an affirmative defense to its liability for damages that (1) the employer exercised reasonable care to prevent and correct promptly any sexually-harassing behavior, and (2) that the employee unreasonably failed to take advantage of these preventive or corrective opportunities provided by the employer or the employee otherwise unreasonably failed to avoid the harm. In situations where the employee has suffered tangible employment action, then the employer can be liable for negligence or vicariously liable and no affirmative defense is available to the employer. In short, a clear, well-publicized policy, clear procedures for reporting and investigating, and prompt corrective action are the right and wise things for an employer to do. |
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