Employment Law: State holds employers liable for harassment

The U.S. Supreme Court issued three decisions in 1998 that changed the landscape of sexual harassment discrimination law.

The court ruled that employers could be vicariously liable for a supervisor's conduct toward an employee when the employee suffered no detrimental job retaliation. Additionally, an employer can be held liable for sexual harassment by a supervisor, even if the employer lacks actual notice of the offending conduct.

Yet, in those cases, the Supreme Court noted that employers could raise affirmative defenses to the sexual harassment allegations unless the victimized employee suffered some tangible employment action, such as discharge or demotion.

The court outlined two elements for the affirmative defenses: 1) The employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and 2) The plaintiff (employee) unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer (usually set forth within the company's anti-harassment policies).

Although Missouri's state courts typically follow the reasoning in federal employment cases and the Equal Employment Opportunity Commission's interpretive regulations when deciding sex discrimination cases under the Missouri Human Rights Act, a recent decision took a different course.

On Dec. 14, 1999, the Missouri Court of Appeals, Eastern District, in Pollock vs. Wetterau Food Distribution, held that a company is strictly liable for a supervisor's sexual harassment, as interpreted under the state regulations promulgated by the Missouri Human Rights Commission.

What this means is that a Missouri employer cannot raise any affirmative defenses as may be allowed under federal employment cases to sexual harassment claims initiated under Missouri's anti-discrimination statute. The state regulation found in Section 8 CSR 60-3.04(17)(c) provides:

"An employer ... is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence."

The Missouri appellate court said this regulation is based on legislative authority and, therefore, has the force and effect of law. In contrast, the federal regulations implemented by the EEOC are interpretive rather than legislative and, therefore, do not have the effect of law.

The strict liability issue in Missouri was initially addressed by the same Missouri court Aug. 17, 1999, when it issued its first appellate decision in the Pollock case.

As a result, the Missouri Human Rights Commission issued an emergency regulation in September 1999 amending the state regulation to provide for the affirmative defenses applicable in federal sex discrimination actions and outlined in the current EEOC interpretive regulations.

The Missouri court, in its December 1999 opinion, acknowledged the amendment by the Missouri Commission on Human Rights objecting to strict liability; however, the court refused to retroactively apply the amended regulation to the sexually harassing conduct in the case which occurred prior to 1999.

Notwithstanding, this emergency amendment was subsequently rescinded in late December 1999 by the Missouri Commission on Human Rights.

As a result, Missouri employers are strictly liable, at this time, for the acts of its supervisory employees for sexual harassment asserted under the Missouri Human Rights Act. A Missouri employer may be subject to strict liability regardless of whether it knew or should have known of the supervisory employee's harassing conduct or that it took action to prevent the unwelcome activity.

The Missouri legislature is conducting hearings on Senate Bill 1028, which is proposed legislation that outlines the standards for vicarious liability of supervisors and allows the affirmative defenses addressed in the U.S. Supreme Court decisions in 1998.

However, until a new law is passed, Missouri employers face the exposure of strict liability for claims of sexual harassment asserted under the Missouri Human Rights Act which are often alleged in lawsuits in addition to federal statutory claims under Title VII.

(Bob Lawson Jr. practices labor and employment law representing management with the law firm of Blackwell Sanders Peper Martin LLP in Springfield.)