July 31, 2018
MAINTAINING A HARASSMENT-FREE WORKPLACE
Managers and human resource professionals should have a fundamental understanding of the laws governing sexual harassment in the work place. However, the interpretation of sexual harassment can be difficult to define, because it is subject to interpretation by various courts, the Equal Employment Opportunity Commission, and state human rights commissions. The information contained in this document is designed to explain rules governing sexual harassment in the workplace and to provide an update on the various courts’ and governmental agencies’ most recent interpretations of sexual harassment laws.
In 1964, Congress passed Title VII of the 1964 Civil Rights Act (Title VII) prohibiting discrimination against applicants or employees based upon the class of sex as well as other protected classes. It is commonly referred to as Title VII and covers all employers who employ 15 or more employees for each working day in each of 20 or more calendar weeks. In 1976, the court interpreted that prohibition to include sexual harassment.
The Equal Employment Opportunity Commission (EEOC) is a federal government agency administratively responsible for enforcing Title VII prohibition against sexual harassment. To assist employers in understanding what is and what is not unlawful sexual harassment, the EEOC has developed its own set of guidelines that define sexual harassment.
II. WHAT IS UNLAWFUL SEXUAL HARASSMENT?
The EEOC defines sexual harassment under Title VII as “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” that is a term or condition of employment. Sexual harassment generally falls into two general categories: quid pro quo and hostile work environment.
Quid pro quo — “I’ll give or take away this for that” — harassment can only be committed by a supervisor or some member of the company chain with power to confer or withhold a tangible employment benefit from the employee. Quid pro quo harassment occurs when an individual is forced to choose between suffering a job-related detriment and submitting to sexual demands. This “put out and you’ll go far, or don’t put out and you’ll get fired” bargain in which employment benefits are contingent upon sexual cooperativeness is the kind of harassment first recognized by the courts as discrimination on the basis of sex.
Sexual harassment consisting of a hostile work environment is different. To establish a sexually hostile work environment, employees must show they were subjected to unwelcome harassment based on gender that affected a term, condition, or privilege of employment and that the harassment was sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive working environment.
No trading of sexual considerations for a job benefit or detriment is necessary to establish a hostile work environment claim. The distinctions between quid pro quo and hostile work environment are important in determining whether unlawful sexual harassment occurred but are irrelevant in determining whether an employer is liable for the unlawful conduct. In other words, when an employee proves quid pro quo harassment (i.e., that a tangible, adverse employment action resulted from a refusal to submit to a supervisor’s sexual demands), then unlawful sexual harassment occurred and the only remaining question is whether the employer will be held liable in money damages. Likewise, when an employee proves a sexually hostile work environment existed (i.e., harassment based on sex was so severe and pervasive it altered a term or condition of employment), then unlawful sexual harassment occurred and the only remaining question is whether the employer will be held liable in money damages. The distinction between quid pro quo and hostile environment harassment is no longer relevant to the question of an employer’s liability. The standards for employer liability are discussed in part IV of this section.
III. THE ELEMENTS OF SEXUAL HARASSMENT
A. Is the harassment welcomed?
If conduct is consensual or welcome, then it is not “harassment.” Only unwelcome gender-based conduct that alters the terms or conditions of employment is unlawful. As a result, it is necessary to distinguish between various types of conduct that is invited, uninvited-but-welcome, offensive-but-tolerated, and flatly rejected. “Unwelcome conduct” means that the employee did not solicit or invite the conduct and the employee regarded the conduct as undesirable or offensive. Whether conduct is unwelcome must be determined in light of “the record as a whole” and “the totality of circumstances, such as the nature of sexual advances and the context in which they occurred.” In order to assess the context in which the alleged incidents occurred, such things as the complaining employee’s sexually provocative speech or dress can be relevant. Nevertheless, the occasional use of sexually explicit language does not necessarily mean all sexual conduct is welcome, and the “use of foul language or sexual innuendo in a consensual setting” does not necessarily invite other sexual conduct or waive the employee’s protections against unwelcome harassment. Unwelcomeness need not be expressed verbally. An employee who walks away from sexual comments or removes her hand every time a supervisor attempts to touch it has communicated unwelcomeness.
According to the EEOC Policy Guidelines regarding sexual harassment, it can be difficult to determine the welcome factor of conduct in cases where the romance has gone bad because the relationship was consensual at some point in time. In these cases, the complaining employee “must clearly notify the alleged harasser that his [or her] conduct is no longer welcome.” An employee’s failure to notify the alleged harasser or management that the conduct is no longer welcome, may be evidence that the conduct is, in fact, welcome. Adding further to the difficulty, “the adverse job action may stem from a personal reaction to the individual involved in the former romance and not involve harassment based on gender. . .,” which would not qualify as sexual harassment.
B. Is the harassment based on sex (gender)?
Despite legends to the contrary, acts performed in sexual harassment cases involving a hostile work environment do not have to involve erotic or sexually charged material – they need only be based upon gender. Intimidation, coercion, and hostility toward women or men can result from conduct other than sexual advances. Sexual harassment showing gender-based animosity occurs because of the individual’s gender.
1. The Equal Opportunity Harasser
Does the law prohibit harassment of both sexes by one individual? The courts have appeared to rule in a variety of different ways. In Chiapuzio v. BLT Operating Corp., out of the District of Wyoming, the court rejected the employer’s defense that Title VII did not apply because the supervisor had discriminated equally against both males and females. The supervisor made sexually harassing comments to a male employee about the employee’s wife who was also employed by the company. In addition, the same supervisor also made sexually harassing comments to the employee’s wife as well as to other female employees. Holding that Title VII prohibited both forms of harassment, the court explained that the supervisor was “an ‘equal-opportunity’ harasser whose remarks were gender-driven.” As a result, the court held that the employer could not escape liability, despite the apparently equal discriminatory treatment against both sexes.
In contrast, the Fourth Circuit Court of Appeals in Hopkins v. Baltimore Gas & Elec. Co. held that, because the supervisor was crude, insensitive, and offensive to all of his employees, both males and females, none of the alleged victims could bring a sexual harassment claim under Title VII. The court reasoned the harassment could not have been based on sex as required under Title VII because both sexes were equally treated. Still other courts have worked to find a certain level of discriminatory animus that differentiates the disparity of treatment between the sexes. In Steiner v. Showboat Operating Co., the evidence indicated that the vice-president of the company verbally abused all of his employees. Nevertheless, the female blackjack dealer's complaint was allowed because the harasser's remarks to women were different from his remarks to men. The comments made to her were sexual and gender-specific in nature instead of merely being mean. In particular, his comments to women contained sexual epithets, which explicitly referred to parts of their bodies and sexual conduct. In addition, the court noted that even if the vice president's use of sexual epithets was equally degrading to men, that may not "cure" his conduct toward women, since women may react differently from men (the court mentions using a "reasonable woman" standard).
2. Same-sex harassment
The bounds of unlawful sexual harassment are not limited to men harassing women or women harassing men. The prohibition of sexual harassment under Title VII also applies to “same sex” harassment. In 1998, the Supreme Court ruled in Oncale v. Sundowner Offshore Services that “nothing in Title VII necessarily bars a claim of discrimination ‘because of . . . sex’ merely because the [harassee] and [harasser] . . . are of the same sex.”
In Oncale, the Supreme Court considered the claim of a man who was subjected to male discrimination on an oil rig in the Gulf of Mexico. While on the rig, the man’s male co-workers allegedly subjected him to “sex-related, humiliating actions,” physically assaulted him in a sexual manner, and threatened to rape him. The Supreme Court found that harassing conduct does not need to be motivated by sexual desire to support an inference of discrimination on the basis of sex. Rather, the Court reaffirmed the guidelines established in Meritor and Harris v. Forklift Systems, Inc. in determining whether harassment between members of the same sex or different sexes, is available under Title VII.
The Court found that the harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. The employee, however, must prove the conduct at issue “was not merely tinged with offensive sexual connotation, but actually constituted ‘discrimination . . . because of . . . sex.’ Male-vs.- male roughhousing or intersexual flirtation should not be mistaken for discriminatory “conditions of employment.” Accordingly, common sense and a sensible gauge on sensitivity to social context is required to distinguish between simple fun or roughhousing among members of the same sex and behavior that a reasonable person would find severely hostile or abusive. As a result, employers can be liable for same-sex harassment so long as the individual is harassed “because of” his or her gender.
3. Transgendered and sexual stereotyping harassment
Recently, a new protected class of individuals is receiving more support as a protected status under Title VII by the EEOC. The issue of whether transgendered employees should be protected has already been recognized by other federal courts and states with anti-discrimination statutes. In Macy v. Holder, the EEOC has now taken the formal position that disparate treatment of an employee because he or she is transgender is discrimination. As a result, transgendered employees who are subjected to work place discrimination have the ability to file a discrimination charge with the EEOC and will have remedies pursuant to Title VII.
In Smith v. City of Salem, Ohio, the court held that a firefighter who was transgendered had a cognizable gender discrimination action. The firefighter was diagnosed with Gender Identity Disorder and was showing a more feminine appearance in his behavior at work. This change in behavior led to co-workers commenting and questioning his appearance as not being masculine. Ultimately, the court found that the employer’s alleged gender stereotyping discrimination was enough to make out a claim for sex discrimination.
IV. OTHER TYPES OF UNLAWFUL HARASSMENT
A. Racial Harassment
Racial harassment has always been a continual source of contention within the courts. Precautions should be taken to avoid liability and hostile working environments with racially charged discriminatory animus. Nevertheless, a recent district court case in the Sixth Circuit has determined that racially charged statements must have a certain degree of specificity to be considered racially motivated and must be causally connected. An employee claimed that he was harassed and discriminated against because of his race. However, he was only able to produce a few specific derogatory comments within a 300 day period which were deemed to be racially motivated. The court determined that while being called "you people" and "scab nigger" was racially discriminating, other comments regarding the employee’s status as a "scab" were discriminatorily ambiguous. The court ultimately determined that a hostile work environment claim could not be supported on the above mentioned facts.
B. National Origin Harassment
Not to be confused with race, or religion, a person’s national origin can also be a hot spot for employer liability. Any sort of derogatory comment directed towards a person’s heritage or ancestry can result in liability. A Muslim from India was subjected to a hostile work environment when employees subjected him to harassment because he was from India. Although no comments were made as to where he was from, the totality of insulting barrages amounted to a viable national origin harassment case. The individual was subjected to several comments mocking his diet, Muslim faith, and prayer rituals. He was also subjected to comments such as “Why don’t you go back to where you came from. . .” This was enough to establish harassment based upon national origin.
C. Religious Harassment
Religious harassment claims are actionable both when an employee is harassed on the basis of his or her religious beliefs and when an employee is subject to the persistent derogatory efforts of others in the workplace. In light of wars in both Afghanistan and Iraq, employers should be increasingly sensitive to derogatory comments based upon religion. The Fourth Circuit held in favor of the employee because of derogatory religion based comments from other employees in the workplace. The case involved a Muslim employee who wore a kufi as part of his religious observance. He was subjected to a hostile work environment and religious harassment when fellow employees repeatedly called him “Taliban” and “towel head,” made fun of his appearance, questioned his allegiance to the United States, suggested he was a terrorist, and made comments associating all Muslims with senseless violence.
D. Age Harassment
The Sixth Circuit has determined that age-based comments can create a hostile environment claim. In Crawford v. Medina General Hospital, the court considered the claim of an employee who contended she was harassed by her supervisor and co-workers based on her age. She alleged her supervisor had stated: “I don’t think women over 55 should be working” and “[o]ld people should be seen and not heard.” The court determined the employee had shown “virtually no evidence that the ‘harassment’ of which she complains was in any way based on age.” Aside from the two, isolated allegations of age-based comments, the majority of the employee’s allegations related to a personality dispute and were not related to age. In a more recent case, the issuance of several reprimands was not an indication of age harassment. The court found that the issuance of three reprimands for rude behavior in the workplace was not evidence of age discrimination absent any other evidence showing discriminatory animus towards the employee’s age.
E. Disability Harassment
In order to show a case for disability harassment under the ADA, a plaintiff must establish that the harassment was related to the plaintiff’s disability and was severe or pervasive, mere criticism of work performance is not enough to establish a claim. With that in mind, A former Taco Bell employee with Down’s Syndrome sued alleging her coworkers “repeatedly teased and harassed her, including sticking out their tongues at her, calling her names, mimicking her facial expressions and the way she walked, making fun of the way she talked. . . and throwing food at her.” Although the court rejected her claim under the Americans with Disabilities Act because it found she could not perform the essential functions of her job, the employee was permitted to proceed on a claim of emotional distress.
V. EMPLOYER LIABILITY FOR SEXUAL HARASSMENT IN THE WORKPLACE
A. Are employers liable for the conduct of supervisory employees?
The Sixth Circuit has previously ruled that employers can be held liable for a supervisor’s harassing conduct, regardless of whether they were aware of it. The court viewed the supervisor as the employer’s alter-ego or agent. Liability attached to the employer so long as the “supervisor’s harassing actions were foreseeable or fell within the scope of his employment [if the employer did not] respond adequately and effectively to negate liability.” In 1998, the United States Supreme Court revisited the question of employer liability in Burlington Industries Inc. v. Ellerth and Faragher v. Boca Raton as it relates to harassment by supervisors.
1. The Ellerth/Faragher defense In Burlington, the Court held:
[a]n employer is liable for a sexually hostile work environment created by a supervisor with immediate (or successively higher) authority over the employee. However, when no tangible adverse action is taken against the employee (e.g., denial of employment, a promotion or a raise) an employer can avoid liability by proving both of the following: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) that the employee in question unreasonably failed to take advantage of any preventative or corrective opportunities that are well communicated by the employer. The court in Court in Burlington gave an affirmative defense to employers which will negate liability for the employer and for which the employer bears the burden of proof. Under the first part of the defense, if a supervisor commits sexual harassment without a tangible adverse employment action, the employer can present evidence that it had disseminated an effective anti-harassment policy as compelling proof of its efforts to prevent workplace harassment. The anti-harassment policy must be effective in that it is “comprehensive, well-known to employees, vigorously enforced, and providing alternative avenues of redress.” For example, the Sixth circuit has provided guidance on how to use an effective anti-harassment policy. In Clark v. UPS the court held that a harassment policy should: (1) require supervisors to report incidents of sexual harassment; (2) permit both formal and informal complaints of harassment; (3) provide a procedure for going around a harassing supervisor to make a complaint; and (4) provide training regarding the policy.
An example of an effective sexual harassment policy and investigation can be found in Primm v. Auction Broad. Co., LLC. The case involved an employee who was sexually harassed by her supervisor. She alleged that her supervisor told her to get more cars to the auction, even if it required performing lewd sexual favors. Accordingly, the company conducted an investigation pursuant to the its sexual harassment policy. The investigation included the procurement of written documentation from the employee and an interview with the supervisor. At the conclusion of the investigation, the supervisor was found to be responsible for sexually harassing the employee and was reprimanded. In addition, the supervisor was required to attend sexual harassment training and put on probation for 90 days. No other further instances of harassment were reported by the employee; however, she was not dissuaded from filing a lawsuit against the company. Regardless, the district court found the employer’s response to be adequate and dismissed the case against the employee.
An example of how not to handle a case for sexual harassment can be found in Snapp-Foust v. National Construction, LLC. The court chastised an employer’s argument that it took timely and effective remedial action in response to a female employee’s complaints of sexual harassment. The employer argued that the company appropriately responded to an allegation of sexual harassment. In support of this argument, the company stated that within one day of receiving the actual notice from the employee, it transferred the harassing supervisor to another job location. However, there were several discrepancies with the way the company handled the employer’s sexual harassment policy. The policy was written on one page in a sixty-page employee handbook. The employer failed to show that the policy was disseminated in any other way. The policy was devoid of any training of personnel in regard to complaint procedures. None of the supervisors to whom the employee complained advised her of the established company procedure for reporting harassment. The supervisors failed to follow the established company procedure for handling sexual harassment complaints. Lastly, the investigation was lacking in that the complaining employee was not interviewed to discover the scope of her complaints or the remedies she sought, nor was she informed of the results of the investigation.
The second part of proving the Ellerth/Faragher affirmative defense requires proof that the employee in question unreasonably failed to take advantage of any preventative or corrective opportunities that are well communicated by the employer. Evidence of procedures fairly administered and that an employee is not required to report the misconduct to his or her harasser shows the unreasonableness of the employee’s conduct. In Sconce v. Tandy Corporation, the court focused on the employee’s knowledge and awareness of the employer’s anti-harassment policy and the fact she knew where to report the conduct. The employee failed to report the alleged harassment because she allegedly feared retaliation from her supervisor. The court found, however, that “a threat of retaliation without more, is not enough to excuse an employee from following procedures adopted for her protection.”
2. Tangible adverse action
As noted earlier, where sexual harassment committed by supervisors results in a tangible adverse action to an employee (e.g., denial of a job, promotion, or a raise), employers are liable and “the affirmative defense” is not available. In other words, where a supervisor commits sexual harassment and a tangible adverse action is taken toward the employee, the employer is automatically liable. The only remaining question is the extent of money damages to be awarded to the plaintiff. In Burlington, the Supreme Court detailed a tangible adverse action as an act that “constitutes significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Rudeness and incivility do not constitute “tangible employment actions.” An extra work assignment is not necessarily adverse employment action. An employee’s request to transfer does not constitute an “undesirable reassignment” for employer liability purposes. In Parton v. Smoky Mt. Knife Works, Inc. out of the Eastern District of Tennessee, the court determined a tangible employment action as: 1) hiring; 2) firing; 3) failing to promote; 4) reassignment with significantly different responsibilities; or 5) change in benefits. The case, although involving several outrageous alleged facts, had no tangible adverse employment action. The plaintiff alleged she was sexually harassed and assaulted by her supervisor, who was also the son of the company’s founder. The supervisor/son allegedly sent the plaintiff love letters and began to allegedly fantasize about getting a divorce in order to start a relationship with the plaintiff. He allegedly threatened to terminate her and tied her up and forcibly kissed her. The plaintiff eventually quit and claimed hostile work environment. The Parton court found that no adverse employment action took place despite the plaintiff’s constructive discharge because the employer performed no act that altered a condition of her employment. A tangible employment action is a change in employment conditions which is more than a mere inconvenience or an alteration of job responsibilities. In Moore v. Third Judicial Circuit of Mich., the plaintiff said that after she refused to submit to her supervisor’s sexual demands she: 1) was excluded from important business meetings; 2) had doors slammed in her face; 3) was subject to excess work requirements; 4) was treated poorly by the staff; and 5) had her authority on a large project revoked. The court, however, found that none of this amounted to a tangible employment action.
3. No Ellerth/Faragher defense if the harasser is the employer’s proxy
The question of whether an employer may assert a Ellerth/Faragher affirmative defense if the alleged harasser is high enough in the company hierarchy to be treated as the employer's proxy has been determined differently through each jurisdiction. Although the Faragher and Ellerth decisions did not mention an exception for a "proxy harasser" situation, a number of courts have concluded that the Faragher/Ellerth defense cannot be used when the individual who engages in sexually harassing conduct is "within that class of an employer organization's officials who may be treated as the organization’s proxy. For instance, in Ackel v. National Communications, Inc., the president of a television station was accused of sexually harassing several employees. The company that owned the television station raised a Faragher/Ellerth affirmative defense to the plaintiffs' sexual harassment claim, relying on the fact that the plaintiffs had not reported the harassment. The Fifth Circuit reversed on the ground that the alleged harasser's position as president potentially made him a proxy for the company. The company disputed that the president was not the company's proxy, pointing out that he held only two percent of the company's stock. Nevertheless, the Fifth Circuit concluded that stockholdings were not the only factor to consider and that the record created a question of fact as to whether the president could be considered the company's proxy. In EEOC v. Robert L. Reeves and Associates, the court offered the following reasons for denying the affirmative defense in a proxy-harasser situation: 1) the Faragher/Ellerth affirmative defense is not available where the company proxy commits the harassment, because the employer could not have taken reasonable steps to eradicate harassment in the workplace; 2) in the case of a proxy harasser, victims of harassment would be required to ultimately complain to the proxy/harasser; 3) consequently, the company’s complaint procedure “which allows the employee to complain to another individual and not the alter ego harasser can be of no effect because the individual to whom the complaint is brought cannot implement any kind of discipline against the harasser, hence, making the complaint procedure or policy in place worthless or illusory.”
4. No Faragher/Ellerth defense if harasser is not supervisor
Until recently, the Circuit Courts were at odds with respect to what constituted a supervisor. In the Seventh Circuit, for example, only employees with the power to hire, fire, promote, discipline, or transfer employees were supervisors for purposes of Title VII. To hire, fire, promote, discipline, and transfer in the context of Title VII is known as taking tangible employment actions against employees. In the Second and Fourth Circuits, however, employees could be considered supervisors, even if they did not have the power to take tangible employment actions, if they exercised substantial control over the day-to-day activities and responsibilities of their subordinate employees. The Supreme Court sided with the Seventh Circuit in Vance v. Ball State University. In that case, a catering assistant sued a university to recover under Title VII for the harassing behavior of the head of the catering department. The university was not liable for the head caterer’s alleged harassment because she did not have the power to take adverse employment actions against the catering assistant.
The employees whom to intend to designate as supervisors should have clearly defined roles and responsibilities. There should be no doubt or room for interpretation with respect to whether these employees have the power to take tangible employment actions against other employees. The employees whom you do intend to designate as supervisors should be carefully and well trained on avoiding and responding to harassment in the workplace.
B. Cat’s paw
A case for discrimination can be made by offering evidence of a “causal nexus between the ultimate decisionmaker's decision to terminate the plaintiff and the supervisor's discriminatory animus." The plaintiff must show that "[b]y relying on this discriminatory information flow, the ultimate decisionmakers acted as the conduit of [the supervisor's] prejudice—his cat's paw."
The question remains, however, whether an employer’s independent investigation negates employer liability even though an adverse employment action may have been tinged by a supervisor’s discriminatory actions. A recent Supreme Court decision has determined that "if the employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action . . . then the employer will not be liable. But the supervisor's biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified."
In Staub a vice president at a hospital was asked to terminate an employee based upon information from a supervisor. The supervisor said that the employee violated a company policy. The vice president relied upon the employee’s personnel file and the supervisor’s information in terminating the employee. When the employee notified the vice president about the supervisor’s discriminatory conduct against him, the vice president chose not to follow up on the claim, but instead, chose to confer with a human resource staff member before making the decision to terminate the employee. As a result, the Court held that the company was exposed to liability.
More recently, the Sixth Circuit Court of Appeals applied the cat’s paw theory of liability to a HR Director’s recommendation of termination in Chattman v. Toho Tenax America, Inc. The plaintiff was an African American employee who worked as a shipping coordinator. After engaging in horseplay, which was not uncommon at this particular place of employment, he was brought to the attention of the HR Director, Tullock, who recommended to the upper management that Chattman be terminated. Additionally, the HR Director lied to one of the decisionmakers that another decisionmaker had agreed with Tullock’s recommendation that Chattman be terminated.
Based on the HR Director’s information, the decisionmakers conducted an investigation that led to Chattman’s being issued a written warning. After being denied a promotion, Chattman filed suit alleging that the company failed to promote him in violation of Title VII. The Sixth Circuit reversed a grant of summary judgment to the employer and held that the HR Director’s actions of lying to the decisionmaker and issuing a termination recommendation for one instance of horseplay, a common occurrence for which several employees had not previously been disciplined, created a fact issue of possible discrimination under the cat’s paw theory of liability. Employers need to be aware that even a seemingly air tight investigation can be subject to the fallacies of a supervisor’s discriminatory actions towards an employee. As seen in Staub, an investigation must be able to separate the rational of its conclusions from a supervisor’s biased action. Only if the investigation makes a determination that is separate and apart from a supervisor’s biased recommendation will a subsequent adverse action taken upon an employee be justified.
C. Liability for conduct of non-supervisory employees
Liability for the conduct of non-supervisory employees turns upon whether the employer knew or should have known of the harassing behavior and failed to take prompt and appropriate remedial action. The employer is deemed to “know” when any coworker harassment is reported to a supervisor or department head authorized to handle such complaints to management about the harassment. Furthermore, if the harassment is so obvious and perpetual that managers or supervisors should reasonably have known about it, then the employer will be deemed with knowledge of the harassment. In harassment cases involving co-workers, if the employer takes prompt corrective action, then the employer may only be liable “if its response manifest[ed] indifference or unreasonableness,” mere negligence is not enough.
For example, in Birone v. Indian River School, the Sixth Circuit found that an employer adequately responded to reports of sexual harassment. The case involved a sexual harassment complaint that was reported to the school. The employer in the case immediately responded to the employee’s complaints and was found not to be liable because it conducted an investigation and took action in response to the claim of sexual harassment.
In a similar case of racial discrimination, Wilson v. Moulison North Corp., a plaintiff was an African American male who worked with three other white males. The plaintiff alleged he was subject to racial slurs from his white co-workers and informed the company about his complaints. In response, the company reprimanded the white employees, threatening to fire them if the racism continued. Unfortunately, the racist remarks continued on a more discreet basis, but the plaintiff only complained to his coworkers, not management. The company reasonably believed that the harassment was over after appropriately responding to the first instance of sexual harassment. Ultimately, the court held that since the plaintiff only reported the continued harassment to coworkers, rather than his supervisors, the company could not be held liable for the coworkers’ knowledge alone.
D. Liability for conduct of non-employees
An employer can be held liable for the harassing acts of nonemployees toward employees in the workplace. If a manager or supervisor knew or should have known of the harassing conduct and failed to take immediate and appropriate corrective actions, as feasible, then an employer will be liable.
In Aguiar v. Bartlesville Care Center, a female medical aid worked at a nursing home. A male resident living at the nursing home was a known criminal who incessantly groped and verbally abused the medical aid. She then complained to management who took remedial action and required two staff members to be with the resident at all times. Despite the change, the harassment continued and evidence indicated that it was well known throughout the facility. One day, the medical aid did not give the resident’s medicine. The resident used profanity against the medical aid, pushed a medicine cart into her and raised his hand as if he was going to hit her. When she yelled back at the resident, she was fired for verbally abusing the resident. The Tenth Circuit held that the employer had actual knowledge of the harassment based on the aid’s reports to management-level employees and other employees’ testimony. After the company took semi-remedial action, there was still constructive knowledge of the resident’s continued sexual harassment as it was well known in the nursing home that the aid was being harassed. As a result, the employer was subject to liability for sexual harassment. Employers need to keep a constant vigil over the employment environment of their employees. Customers, vendors, patients, repairmen, delivery people, and any other third party player in a work environment, are all sources of possible sexual harassment that can be imputed upon the employer if appropriate action is not taken.
E. Liability for failing to conduct an adequate investigation
Another major liability risk for employers is conducting a negligent or inadequate investigation. One recent case that highlights this concern is EEOC v. American Laser Centers. In American Laser Centers both the clinic’s consulting physician and the landlord continually harassed a group of female employees. The employees complained to the company. The company responded that the women had misunderstood much a lot of the behavior and that they should simply avoid their harassers. Furthermore, the woman who brought the complaint was fired a week later, which amounted to retaliation. The court found that the investigation was completely lacking and the company was liable for the harassment.
Another case, involving a different type of internal investigation, is Correia v. Canac Kitchens. Canac is a manufacturing company that was having troubles with theft and drug dealing. They hired an outside investigator and brought in one of the investigator’s employees to do undercover work on the factory floor. This led to the misidentification of Mr. Correia as the thief/drug dealer. Mr. Correia was taken to a supervisor’s office and handed his pink slip. He was then taken to another office and arrested. However, the employee of the investigator who did the undercover work was not present during any of this and no one even showed him a picture of the employee that they decided to fire and have arrested. After three hours in jail, they realized the mistake and Mr. Correia was cleared of all charges. Canac offered to reinstate him, but he was too devastated from the ordeal. Mr. Correia brought a negligent investigation claim and was successful. The lesson for employers is that private investigators owe the same duty of care to a suspect as the police.
One final case involving negligent investigations is Tayburn v. City & County of San Francisco. This was a title VII sexual harassment case where the employer completely failed to interview several of the employees and managers involved in the dispute. Additionally, the employer did not take any interim measures and the harassment continued even after they received the complaint. It comes as no surprise, then, that San Francisco, in its capacity as an employer, was held liable for the harassment for failing to conduct a sufficient investigation.
VI. CONDUCTING AN EFFECTIVE HARASSMENT INVESTIGATION
A. When to investigate
The key towards avoiding sexual harassment lawsuits is taking immediate and appropriate corrective action in response to a sexual harassment complaint. Appropriate corrective action includes a prompt thorough investigation that is conducted in a manner that respects the rights of the company, the accuser, and the accused.
A critical component to sexual harassment cases are based upon on a manager’s or supervisor’s initial response to a complaint. The initial response toward a complaint for sexual harassment can determine whether the complaining employee pursues the complaint with the EEOC or a court. In addition, the initial response towards a complaint can have a profound impact later on with the EEOC, a court, or a jury if the complaint is litigated in the future. When a manager, employee, or supervisor learns of possible sexual harassment in the workplace, he or she should immediately appropriately report the incident and investigate the matter if within his or her authority. Remember, an employee does not have to make a complaint to trigger the investigation duty. If a supervisor knew or, upon reasonably diligent inquiry, should have known of possibly harassing conduct, a duty to investigate exists.
Supervisors will usually be charged with knowing about sexual harassment if it is openly practiced in the workplace or well known among employees. Accordingly, managers or supervisors who overhear sexual comments or jokes and who observe sexual horseplay or touching in the workplace should be prepared to investigate the situation if it appears the conduct may be unwelcome to one or more of the company’s employees.
With regard to consensual relationships in the workplace, employers have a duty to investigate only if they have reason to believe coercion is involved or the relationship is unwelcome to one of the employees. As the court noted in Jackson v. Kimel, the duty to investigate sexual harassment in the workplace does not extend to every office romance. Something more than mere knowledge of an office romance or an affair is required to trigger the investigation duty. A proper investigation and response is essential to combating sexual harassment within the workplace. Federal courts are in agreement that employers can rely on the affirmative defense when they promptly respond to a report of a single incident of alleged sexual harassment. More importantly, because “[t]he underlying theme [of the Faragher/Ellerth affirmative defense] under Title VII is employers should nip harassment in the bud,” where the defense is applicable, the court need not address whether the alleged conduct constitutes actionable sexual harassment. Thus, where an employee complains of sexual harassment and the company properly responds to remedy the problem, courts may summarily dismiss later sexual harassment claims based on the prior conduct.
B. Protecting the rights of the accuser and the accused
When investigating complaints of sexual harassment supervisors should remember that the person accused of harassment may sue for a multitude of legal causes of action. Potential claims include wrongful discharge, defamation and compelled self publication, false light, tortuous interference with contract, discrimination based on a protected category, intentional infliction of emotional distress, breach of contract, and constitutional claims for government employees. The threat level of an alleged harasser’s claims against the employer depends upon the quality of the sexual harassment investigation.
In many situations the success or failure of an employer’s defense to these claims will turn on the reasonableness of the employer’s response to allegations of harassment. A careful analysis of the sexual harassment complaint will yield dividends in protecting against unwanted and costly litigation. Asses whether a proper investigation was done in good faith, whether the employer had a solid basis for disciplining or punishing the accused harasser, and whether the employer imposed the same punishment on other employees engaging in similar conduct? An investigation done thoroughly, well documented, and maintained with strict confidentiality will significantly reduce the risk of liability for claims filed by a would-be alleged harasser.
Real-world managers and human resource professionals must arm themselves with an easily understood standard for what is and what is not acceptable workplace conduct. They must then take affirmative steps to make sure all employees understand and abide by this standard. Alleged violations of the required standard of conduct should be promptly investigated and appropriate remedial action taken depending on the facts of each situation. It is only by developing and following a proactive approach to sexual harassment in the workplace that employers will be able to effectively resolve complaints internally and reduce the risk of liability in the event of sexual harassment litigation.