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Sexual Harassment Policy and Complaint Procedure


Supreme Court Rulings: A Mandate for Employers to Provide a Formal Sexual Harassment Policy and Complaint Procedure?

Recent decisions of the United States Supreme Court can be viewed as a mandate for employers: communicate to all employees a formal policy against sexual harassment, including a sensible complaint procedure. An employer who fails to do so could lose a defense it otherwise may have against claims of a sexually hostile work environment.

In 1998, the Supreme Court decided the cases of Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998). The cases dealt with sexual harassment claims under Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating based on an individual’s race, color, religion, sex, or national origin.

In general, Title VII applies to any employer having 15 or more employees. (In this regard, a number of factors are used to determine whether a person working in a business is counted as an employee or is treated as an independent contractor. If a person is treated as an independent contractor for tax purposes, he or she still might be counted and protected as an employee for Title VII purposes.) Analogous state and local laws may apply to an employer, regardless of size.

The Title VII cases before the Supreme Court had similarities to each other. The Ellerth and Faraghercases each involved a female employee who quit her job and later sued her employer. The plaintiffs alleged their supervisors had, by offensive words and conduct, created a sexually hostile work environment. Explicit or implicit threats allegedly had been made by the supervisors to alter the subordinates’ terms or conditions of employment based on sex.

However, no “tangible employment action” was actually taken by either employer. In other words, there was no significant change made by the employer in the employee’s status, such as hiring, firing, failing to promote, reassigning, or making a decision causing a significant change in benefits. In each of the cases, upper management apparently was unaware of the alleged harassment taking place.

The Supreme Court ruled under these circumstances that an employer can be liable to a victimized employee for a hostile environment created by a supervisor with authority over the employee. However, in cases where “tangible employment action” was not taken, the employer may raise an affirmative defense, in which the employer must prove two elements: (a) that the employer “exercised reasonable care to prevent and correct promptly” any sexually harassing behavior, and (b) that the plaintiff employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

Applying this test, the Court discussed the importance of an employer providing a policy and procedure to prevent and correct sexual harassment. The Court indicated that an employer’s use of a stated policy and procedure does not ensure the employer will win if a lawsuit is brought by an employee for harassment. But, proof that an employee unreasonably failed to use any complaint procedure provided by the employer “will normally suffice to satisfy the employer’s burden” of showing the employee’s failure to avoid harm.

In the Faragher case, the Court ruled against the City of Boca Raton as a matter of law. Citing the City’s failure to distribute its existing policy to the department section involved, the Court held that the City could not be found to have exercised reasonable care to prevent the supervisors’ harassing conduct. The Court noted that the City’s officials made no attempt to keep track of the conduct of supervisors, and the City’s policy “did not include any assurance that the harassing supervisors could be bypassed in registering complaints.”

Under the circumstances, the Court rejected any notion that sufficient care could be exercised informally. Those responsible for city operations “could not reasonably have thought that precautions against hostile environments in any one of many departments in far-flung locations could be effective without communicating some formal policy against harassment, with a sensible complaint procedure.”

The rulings have significant implications. If a sexually hostile environment is alleged by an employee, but there has been no “tangible employment action,” such as firing, demotion, or other significant change by the employer, evidence of a formal sexual harassment policy could be vital to the employer’s defense. The employer would want to show that a written policy, including a sensible complaint procedure, was provided to all concerned.

The employer also would want to demonstrate that the employer actually implemented the policy: it reinforced the policy by training or other communications; it did not leave unchecked any offensive behavior; it encouraged complaints of harassment to be made without retaliation; it thoroughly investigated any complaint; and if warranted, it promptly took corrective action. If the employee failed to take advantage of the policy and procedure, the employer may convincingly argue that harm to the employee was not the employer’s fault.

Although Title VII seeks to make persons whole in cases of unlawful employment discrimination, the courts have recognized the primary objective of the law is not to provide redress but to avoid harm by influencing conduct. A carefully-drafted sexual harassment policy, which has been effectively communicated and implemented, can be instrumental in serving both objectives. Especially in view of the Supreme Court’s rulings, there can be serious consequences for an employer’s failure to provide a sexual harassment policy and procedure.

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