Supreme Court Expands Employer Liability For Sexual Harassment: What Employers Should Do Now

Author:Mr Robert Blackstone
Profession:Davis Wright Tremaine
 
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The Decisions

Sometimes you regret ever having asked a question after you find out the answer. That is what some employers may now be feeling after the U.S. Supreme Court handed down its two recent 7-2 opinions concerning sexual harassment in the work-place, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth.

Faragher involved a lifeguard employed by the City of Boca Raton, Florida who claimed sexual harassment by her supervisors. However, the Fifth Circuit Court of Appeals held that because the harassment never came to the attention of City Hall and the supervisors were not acting within the scope of their employment, the City could not be held liable.

Burlington Industries concerned a marketing representative for Burlington Industries in Chicago who refused the unwelcome and threatening advances of a supervisor, but did not suffer any tangible retaliation or adverse job consequences, and did not file any complaint with the company. She quit and sued Burlington, claiming constructive discharge. The trial court granted summary judgment to Burlington dismissing her claims, but the Seventh Circuit Court of Appeals reversed in a decision that produced eight separate opinions and no consensus about what the law should be regarding employer liability.

In these two decisions, the Supreme Court has now held that employers can be held liable for sexual harassment by their supervisors, regardless of whether senior management knew or should have known that the harassment was occurring, and regardless of whether or not the offended employee suffered some tangible job detriment such as a termination or a lost promotion. Lower federal courts had been struggling to define the circumstances under which employers could be held liable for sexual harassment by supervisors, resulting in widespread confusion among employers and differing standards in various parts of the country.

Defenses Available to Employers

While the Supreme Court decisions did establish a relatively clear rule making employers liable for sexual harassment by their supervisors, the Court also set out the elements of an affirmative defense which is available to employers to avoid or minimize such liabilities. In order to take advantage of this defense, employers will have to show, by a preponderance of the evidence, that they "(a) exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plain-tiff employee unreasonably...

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