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A new employee in your marketing department complains to a co-worker that the marketing director has made unwelcome sexual advances toward her. She has asked him to stop, but he persists. Although he hasn't threatened to discharge her, her concentration and job performance have suffered. She is reluctant to report his harassment because she fears retaliation - the director has been with the company for a long time.
Your employee handbook states that the company will not tolerate sexual harassment in the workplace and you require supervisors to attend a seminar on the subject. What is your potential liability if the employee files a sexual-harassment lawsuit?
You may be surprised to learn that your company is liable for the supervisor's conduct and any harm or lost opportunities that it causes. Even though you knew nothing about the alleged conduct and made your policy well known, you are responsible for keeping your workplace from becoming a hostile environment.
Let's look at how the law defines hostile work environment and how to avoid liability.
Title VII: It's The Law
Title VII of the Civil rights Act of 1964 outlaws workplace harassment.
The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing Title VII.
Title VII distinguishes between two forms of sexual harassment. Quid pro quo harassment occurs when a supervisor promises favorable treatment to an employee in return for submitting to unwelcome sexual advances or threatens to fire or not promote an employee for spurning sexual advances.
A hostile work environment occurs when sexual speech or conduct is sufficiently severe or pervasive to interfere with a person's job performance or alter employment conditions. Conduct that can be considered sexual harassment includes:
- Unwelcome requests for sexual favors
- Verbal abuse, ridicule, insults, slurs or sexual gestures
- Obscene jokes, cartoons or pictures
- Lurid comments about the victim's body or private life
- Repeated, unwanted requests for dates, or persistent calls, notes or gifts
- Sexual contact such as touching, feeling, grabbing, impeding or blocking
- Direct sexual assault
This conduct may constitute harassment whether it occurs between members of the opposite or the same sex, and doesn't have to be ongoing. Sometimes one incident - such as sexual or physical assault – is severe enough to create a hostile work environment.
Employer's Liability
Your company is liable whenever anyone in the command chain harasses a victim. An employer is subject to vicarious liability to a victimized employee for a hostile environment created by anyone with higher authority over the victim. This is true even if you are aware of the conduct - because supervisors are your direct agents, and you are responsible for maintaining a hostility-free environment.
But suppose the harasser is someone without direct authority over the victim - for example, a co-worker or an outsider such as a customer or vendor. Then you are liable only if you:
- Know (or should have known) about the conduct
- Have not established a reasonable, retaliation-free avenue for victims to complain and get relief
Employer's Duty To Act
As soon as you learn of an alleged instance of sexual harassment - even if only a rumor - you must promptly investigate and take remedial action. The remedy must be fair to the victim and can't alter his or her working conditions unless requested. Remedies might involve:
- Removing the harasser from the victim's immediate work location.
- Improving the victim's working conditions if necessary to restore a safe and comfortable work environment.
- Compensating the victim if the harassment has adversely affected his or her job performance or productivity, or created stress or humiliation.
Victims not satisfied with your response can file complaints with the EEOC. The EEOC can investigate and file a federal lawsuit on the victim's behalf or give the victim a right-to-sue letter.
Affirmative Defenses
Let's suppose that a victim has filed a complaint (lawsuit) against your company accusing a co-worker of sexual harassment. You file an answer denying the complaint's facts and arguments. Your answer can go beyond mere detail and set out new facts and arguments that might win the case for you - even if everything in the complaint is true. This is what lawyers call affirmative defenses. Fewer affirmative defenses exist for supervisor liability because it is more serious than co-worker liability.
You can usually present an affirmative defense to charges of fostering a hostile work environment by showing that:
You exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and
the victim failed to report and seek a remedy for offensive behavior as provided in your antiharassment policy.
Review Your Policy
Besides sexual harassment, your policy should also bar other forms of harassment, including discrimination on the basis of race, religion, age, disability, national origin or veteran status. Now is a good time to make sure your company is free of illegal harassment. We would be happy to review your policies and advise you how to prevent harassment lawsuits.
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