31 Jan Case Study: Avoiding Liability for Harassment Claims
All this month, I have been talking about anti-sexual harassment policies. I have provided information on the definition, what to include in a policy, how to conduct an investigation and other information on the topic. However, I have not talked much about why have a policy other than saying it is a good idea. Well, this case study is about the law and provides the reason why.
This case study is actually about two cases that went all the way to the Supreme Court and were decided on the same day. The cases are Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). (Click the link and scroll to page 742 and 775 respectively). The case dealt with sexual harassment in the work place which is usually very bad news for employers who were usually held vicariously liable for harassment, but in these two cases, the Supreme Court gave employers a bit of an out.
So before I explain the defense, you might need to understand the term “vicarious liability.” What this legal term means in the context of sexual harassment is that blame can be assessed to a company for the actions of its employees. So if you have a supervisor or employees who create a hostile workplace for other employees, the company can be held to blame as well as the employees. This is even more prevalent in cases where a supervisor is doing the harassing. There is a whole host of reasons for this in the legal sense, but they all boil down to the notion that a supervisor/Manager is considered to be speaking for or acting for the company in the company’s dealings with subordinate employees. That is a little simplified but gets the points across. The problem with this theory is that harassment is usually, in fact almost always, not something employers want or condone. So there was a conflict in the law.
The conflict was that while supervisors may speak for employers in matters that are within the supervisor’s duties, sexually harassing employees is never in anyone’s job description. So under the law in other areas of the law, if a supervisor acts outside the scope of their job duties, for example, stealing a car while working or embezzling money, the employer is usually not held to be responsible. But that has not been the case for sexual harassment and thus, understandably, employers were not happy.
The Ellerth and Faragher cases gave the Supreme Court the opportunity to lay out a means of clarifying when an employer would not be held liable for the sexually harassing actions of its employees. The Supreme Court often gets pretty policy driven in its opinions and frankly a little meta in the discussion in these cases, but ultimately, they came up with this not so little nugget:
When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary 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.
Okay, so let’s break this down a bit to help define a few things:
“Tangible employment action” means firing, demotion, reduction in pay or hours, transfer to a less desirable assignment, or something similar that is a detrimental action affecting the plaintiff/victim’s employment conditions.
“Affirmative defense” means that the defendant in an action can claim a defense, but it is one that the defendant has to prove themselves. This is different than other defenses which usually just is a counter argument to the plaintiff.
“Preponderance of the evidence” is a general standard of proof that just means the explanation or defense give is more likely than not. The best way to think about is 50% + 1. This is a lower burden of proof than beyond a reasonable doubt that you hear in criminal cases.
Okay, a few words about the pre-condition, “When no tangible employment action is taken…” If an employee is demoted, has their pay cut, is reassigned to a less desirable position, or there is any other negative impact on the employee’s work conditions, then an employer would do well to make sure that there is a second, objective, review of the job action BEFORE the action is taken.
If an adverse tangible employment action is taken, then the affirmative defense is no longer available. While having a second set of eyes on all employment actions is a good idea, when there is an adverse job action, having a review can prevent an action that is premised on harassment or failure to submit to harassing conduct.
So the affirmative defense needs two things. The first part, that the employer used reasonable care to prevent or correct harassing behavior, is actually not hard to do. Have a clearly defined, fully distributed, and written anti-harassment policy. This is why I tell employers to have a written policy. Regular training, attended by all employees and special training for supervisors, is a big help. If an employer has a written anti-harassment policy, either separate or in an employee handbook, and the employee acknowledges receipt of the handbook or policy, generally this is sufficient. However, I suggest semi-annual training sessions on harassment, how to define, how to spot it, and how to report it to superiors. For supervisory employees, I suggest an additional semi-annual training on spotting harassment, investigation procedures and managing reports of harassment.
Having written policies that are followed-that is key as well, following the policies, is the first step to the employer avoiding liability. It is the easiest one to control and all employers should be following it.
The second element of the affirmative defense is if the employer can show that the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” This actually an either/or option of proof, but it is helpful to be able to offer evidence of both. The first option is that the employee didn’t take advantage of prevention or correction procedures. When I say have a clearly written and defined process for reporting harassment, this is why. If there is a procedure to report harassment, with options to go outside the chain of management, then an employee who has suffered harassment should know where to go. If the employee doesn’t follow the procedure, and the procedure is easy and reasonable, then it is impossible for a business to address the harassing conduct.
The second option is if the employee didn’t take steps to avoid the harassment. Remember back to the “unwelcome” part, if a harassed employee does not make it known that the conduct is unwelcome, then it becomes difficult to claim harassment. If the employee themselves voluntarily engages in the activity, then it is not harassment. If the employee continues to put themselves into the harassing situation without any attempt to avoid or correct the harming activity, then the employer cannot be held liable.
While not part of the actual defense, I reminder employers and employees, if you don’t report the harassment, the company has no idea that it is happening and cannot address it. However, be aware that, if an employee can show that their supervisor or others in management or ownership position saw the behavior, the reporting requirement is difficult to maintain. So, while having a policy in place, and an easy to follow reporting procedure is certainly important and can be helpful, having supervisors and owners who are actively looking for harassment and harassing situations also go a long way to helping the business avoid liability for harassment or a hostile work environment.
Like I have said all along:
- Have a clearly written, easy to understand, anti-sexual harassment policy. The policy should be revisited at least once per year to ensure it is compliant and easy to understand.
- Conduct regular training on harassment and the procedures for reporting harassment.
- Before any negative job action is taken on any employee, have at least a second set of eyes on the action and inquire fully as to the reasons for the action.
When in doubt about anything related to sexual harassment, please contact legal counsel BEFORE you take any negative actions.