Prevention best defense in sexual harassment lawsuits

Two recent United States Supreme Court decisions establish a new standard for employer liability in cases where a supervisor creates a sexually hostile work environment without taking any adverse employment action against the victimized employee.

In both cases, the plaintiff alleged that she was subjected to sexual harassment in the form of either threats or unwelcome language and touching, but neither plaintiff suffered any adverse job effects for rejecting the supervisors' advances.

Prior to the two Supreme Court cases, sexual harassment claims fell into two categories: 1. Quid pro quo and 2. hostile environment.

A claim of sexual harassment based on the quid pro quo theory involved a supervisor tying an employment benefit to an employee's submitting to sexual advances.

A claim based upon the hostile work environment theory consisted of a supervisor allowing sexual harassment to take place in the workplace to such an extent that a hostile work environment was created.

Formerly, an employer was automatically or vicariously liable for quid pro quo sexual harassment regardless of whether the employer knew or should have known of the harassment.

With regard to hostile work environment claims, an employer was only liable if the employer knew or should have known of the harassment and failed to take corrective action.

The two recent United States Supreme Court decisions establish a new standard where a supervisor creates a hostile work environment without there being any tangible job detriment. An employer will be liable for a hostile work environment created by a supervisor who has authority over the employee where there is no tangible job detriment unless the employer can establish:

1. The employer exercised reasonable care to prevent and promptly correct any harassing behavior; and

2. The employee reasonably failed to use any procedures or policies for resolving the harassment.

Therefore, the employer's defense to a harassment claim is the existence of a policy prohibiting harassment, distribution and education regarding the policy, and an employee's failure to use the policy.

As a result of these recent decisions, there are some clear guidelines for an employer wanting to avoid liability for sexual harassment claims.

First, if an employer does not have a policy against sexual harassment, or fails to distribute the policy to its employees, the employer will be liable regardless of whether there was an adverse employment action taken against the employee claiming sexual harassment.

Second, if an employer has a policy prohibiting sexual harassment, and the complaining employee did not suffer from an adverse employment action, the employer can escape liability if the employee unreasonably failed to use the policy. However, the employer bears the burden of proof and must establish that the employee unreasonably failed to use the policy.

An employer can increase the likelihood that an employee will be found to have unreasonably failed to use the policy if the employer adopts a policy which includes a grievance procedure, provides strong assur[[In-content Ad]]