Sexual harassment rulings less than meets the eye - includes related article on the future of sexual harassment cases

HR Magazine, Oct, 1998 by Debbie Rodman Sandler

Will recent Supreme Court decisions change the sexual harassment landscape for employers?

At the end of its last term, the U.S. Supreme Court issued two rulings that offer insight about employer liability for sexual harassment. The decisions (Faragher v. City of Boca Raton, No. 97-282, and Burlington Industries Inc. v. Ellerth, No. 97-569) were both hailed and condemned hailed for establishing new rules for such cases, and condemned for encouraging employees to sue over any perceived indignity, real or imagined.

Based on what has appeared in the popular press, answer true or false to these statements:

1. The Supreme Court now has made employers absolutely liable for sexual harassment, even if they take immediate corrective action.

2. Even the slightest sexually suggestive conduct at work will result in the employer paying punitive damages.

3. Employers now are liable for sexual harassment - even if they had no knowledge of the offensive conduct.

Despite what you may have read, all three statements are false.

It is ironic that these cases, which do little more than reaffirm long established guidelines, have generated so much interest. While there is no cause for alarm, employers are understandably anxious to do whatever they can to shield themselves from further exposure, particularly because heightened public awareness may prompt more employees to file charges of sexual harassment, in much the same way that the Anita Hill/Clarence Thomas spectacle opened the floodgates for such charges in 1991.

The fact remains that while neither case offers any genuine bombshells, both decisions offer guidelines for responsible employers. These are:

* If you don't already have a written policy against sexual harassment that includes a clearly stated procedure for filing a complaint, get one.

* Once you have a policy and procedure, make sure everyone knows about them.

* Be prepared to investigate every complaint in accordance with your procedures.

* Document every employment decision.

BACKGROUND AND RULINGS

The Faragher case illustrates virtually everything that an employer should not do. In that case, the employer - the city of Boca Raton, Fla.-adopted a sexual harassment policy in 1986. The policy was stated in a memorandum from the City Manager addressed to all employees; however, the city failed to disseminate its policy among employees of the Marine Safety Section. The result: Many employees were unaware of it.

The plaintiff, Faragher, did not complain to higher management about the offensive behavior she suffered at the hands of her supervisors. That behavior included lewd remarks, offensive references to women and allegations that one supervisor said he would never promote a woman to the rank of lieutenant. Another supervisor said to Faragher: "Date me or clean the toilets for a year."

While Faragher did mention her supervisors' behavior to one management employee, she did not consider this a formal complaint to a supervisor but rather a conversation with someone whom she held in high esteem.

Other female lifeguards had similar informal talks with the same manager. Because this individual did not feel it was his place to do so, no complaints were relayed up the administrative ladder. Not surprisingly, the Supreme Court concluded as a matter of law - that Boca Raton did not exercise reasonable care to prevent the harassing conduct of the supervisors. (The lesson for HR professionals: All managers should always and immediately report any allegations of harassment.)

In the Ellerth case, Kimberly Ellerth quit her job after 15 months as a salesperson in one of Burlington Industries' divisions. She allegedly quit because she had been subjected to constant sexual harassment by one of her supervisors, Ted Slowik. Slowik was a mid-level manager who had authority to hire and promote employees, subject to higher approval. He was not considered a policy maker.

Against a background of repeated boorish and offensive remarks and gestures allegedly made by Slowik, Ellerth alleged that Slowik threatened to deny her tangible job benefits in three separate incidents. Despite the fact that she refused all of Slowik's advances, she suffered no tangible retaliation and was, in fact, promoted. Moreover, she never informed anyone in authority about Slowik's conduct, despite knowing that Burlington had a policy against sexual harassment.

The issue in this case centered on this legal point: Can an employee sue for harassment even if her alleged harasser never made good on his threats? The Supreme Court ruled that employees who refuse the unwelcome and threatening sexual advances of a supervisor-yet suffer no adverse, tangible job consequences-may recover damages from the employer. What's more, employees are not required to show that the employer was negligent or otherwise at fault for the supervisor's actions.

The court did, however, outline a valid defense that employers can use against such claims. That defense has two parts:

Part I: The employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior.