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U.S. Supreme Court Decisions Send a
Clear Message to Employers about
Preventing Harassment

By D. Jan Duffy, J.D.

The U.S. Supreme Court’s decisions in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S. C. 2275 (1998) sent a clear message to employers to step up their sexual harassment prevention efforts. The Court ruled that employers are always liable for supervisors’ sexual harassment that results in depriving the victim of a tangible job benefit. These are now the so-called “quid pro quo” cases. (The reference to “tangible benefits” probably includes job retention, promotions, transfers, and the like.) The Court also held that employers may be liable for supervisors’ sexual harassment even where no adverse job action is involved. This is the newly defined supervisorial form of “hostile environment harassment.”

In these cases, however, employers at least have an affirmative defense. To assert it successfully, an employer must prove 1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and 2) that the complaining employee unreasonably failed to take advantage of appropriate preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

Both holdings translate to the same thing: Every employer must develop, publicize, and enforce an effective harassment prevention program and complaint-handling procedure. Every employer must take effective corrective action when it knows or should know about harassment in its workplace. The importance of these decisions is clear: An employer’s failure to stop supervisors from engaging in quid pro quo harassment will mean strict liability and damages. An employer’s failure to take reasonable care to prevent supervisors’ hostile environment sexual harassment, to correct it, or to appropriately encourage or permit victims to complain, means strict liability and damages as well. Accordingly, employers can no longer afford to do nothing—or even to fail to do enough!

Some commentators have questioned whether the mandates of the Faragher and Ellerth affirmative defense apply only to supervisors’ hostile environment harassment or also to that created by co-workers or peers. While legal theories of liability may be different in the two types of cases (liability for “negligence” in co-workers’ hostile environment harassment, versus “vicarious” [strict] liability in cases of harassment by supervisors), the analysis as to whether the employer had the required effective prevention program and complaint procedure in place will most likely prove to be the same. The Fifth Circuit Court of Appeals agreed in Williamson v. City of Houston, 148 F. 3d 462, holding that the Faragher and Ellerth affirmative defense duty applied in a case of co-worker hostile environment harassment.

Most employers were already taking some steps to prevent or to properly handle sexual harassment. So what’s really changed? What’s changed is that the focus of most sexual harassment lawsuits and government investigations will now be upon the effectiveness or quality of the employer’s prevention and complaint-handling efforts. Whether it is preventing supervisorial “quid pro quo” harassment from happening at all, or doing everything that an employer can “reasonably” do to prevent and properly handle supervisorial hostile environment harassment when it does arise (so as to qualify for the new defense), the employer’s success or failure in harassment lawsuits now absolutely depends upon the quality and effectiveness of its prevention efforts.

Copyright © 1998 D. Jan Duffy. All rights reserved.
Reprinting or other publication without prior written permission prohibited.