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Employment Law

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by Bob Lawson

As I mentioned in my last Employment Law article (Springfield Business Journal, May 11-17, 1998), "sexual harassment" lawsuits garner much of today's focus on discrimination in the workplace. One recurring problem is trying to define what conduct is or is not considered sexual harassment.

Although the U. S. Supreme Court ruled in 1986 that sex discrimination under Title VII of the Civil Rights Act of 1964 includes "harassment," there has been little guidance on its meaning. The dismissal of Paula Jones' sexual harassment case against President Clinton in April caused further confusion in the public's mind. That decision focused not on what the president allegedly did, but on the fact that Jones failed to show any detrimental repercussions to her job.

The U.S. Supreme Court has attempted, though, to formulate some guidelines for private employers with its recent rulings. March 4, 1998, the Court ruled in Oncale vs. Sundowner Offshore Services that same-sex harassment lawsuits are actionable under Title VII. Additionally, June 26, 1998, the court issued two other decisions which established new rules for employer liability.

Although many articles have been written about these cases in the last two weeks, I feel compelled to discuss them, too, because of their legal implications. These cases analyze a company's liability for its supervisor's sexually harassing behavior.

In Burlington Industries v. Ellerth, the Supreme Court found that an employer can be held liable for a supervisor's harassment, even if the employee does not suffer any adverse consequences to his or her job.

In this case, a female marketing assistant was constantly confronted with her supervisor's comments and passes. She never suffered any detrimental job retaliation by the supervisor and, in fact, received a promotion. However, the court ruled that the employer could be vicariously liable for its supervisor's conduct.

The court, though, noted that "we express no opinion as to whether a single unfulfilled threat is sufficient to constitute discrimination." Sexual harassment cases based on a "hostile work" environment created by a supervisor will now focus on the egregious conduct of supervisors, not what did or did not happen to the employee's job.

In Faragher vs. City of Boca Raton, a female lifeguard sued the city for the harassment she received from her male supervisors while she performed her work on the beaches. She and other female lifeguards spoke to a police lieutenant about the conduct, but the conduct did not cease.

The city argued that it was not liable for the conduct because it never knew about it and that it had a clear policy prohibiting such conduct. But the court stated that an employer can be held liable for sexual harassment by a supervisor, even if the employer lacks actual notice of the offending conduct.

However, the Supreme Court noted in both cases that employers can raise an affirmative defense to sexual harassment allegations, unless the victimized employee suffered some tangible employment action.

The affirmative defense consists of two necessary elements: 1. that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 2. that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to avoid harm otherwise.

The court further stated that "while proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the second element of the defense."

These cases will likely have at least two results. First, because the court did not explain exactly what steps employers must take to rely upon the defense outlined above, there will be even more litigation to clarify this confusion.

Second, employers should understand that they can be held liable notwithstanding this defense, so long as the plaintiff fulfills a duty of reasonable care to avoid harm. Therefore, in practice, employer liability may very well be the rule where employees can prove that a supervisor created a hostile work environment.

(Bob Lawson is an attorney with the firm of Blackwell Sanders Matheny Weary & Lombardi LLP in Springfield.)

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