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New Rules on
Sexual Harassment
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Business New Haven
8/10/98
By: Christopher Brigham
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As Connecticut employers are or ought to be aware, sexual harassment on the job can cost dearly in terms of time, money and employee morale.
In order to prove a sexual harassment claim under any theory, the claimant must first prove that sexually offensive or discriminatory physical or verbal conduct on the part of another employee has negatively affected his or her work status or environment in some fashion.
Such misconduct generally falls into two categories: 1) so-called quid pro quo claims, where an employee in a supervisory position relative to the claimant makes sexual advances or comments and then retaliates, via a negative employment action, against the claimant who ignores or refuses the offending activity; and 2) hostile work environment claims, where it is not necessary to show that job status has been adversely affected, but the claimant must show that the 'bothersome attentions or sexual remarks' are offensive, severe and pervasive.
Before June 26, 1998, the general rule was that an employer was absolutely liable - that is, responsible for its own actions as well as those of its supervisory employees - only under the quid pro quo theory. In two separate opinions on that date, however, the U.S. Supreme Court decided that, under certain circumstances, an employer is responsible to a victimized employee under the second theory as well the first.
In these opinions, however, the court also provided some very helpful guidelines to be followed in order to limit or fully avoid vicarious liability.
In Ellerth v. Burlington Industries Inc., former employee Kimberly Ellerth claimed that her male supervisor's sexual harassment had forced her resignation. Although aware of Burlington's policy against sexual harassment, she did not raise the issue prior to resigning.
In Faragher v. City of Boca Raton, lifeguard Beth Ann Faragher claimed that her supervisors not only made crude sexual comments, but physically touched her as well as other female lifeguards over a five-year period. Although Faragher did “discuss” the misconduct with her supervisors' supervisor, the courts found that the city had “completely failed to disseminate its policy” regarding sexual harassment.
In both cases the high court held that vicarious liability may now be assessed under the hostile work environment theory as well as under a quid pro quo claim.
However, if the employer can prove each of the following two elements, it can avoid both liability and damages: 1) that the employer exercised reasonable care to prevent and correct promptly any sexually-harassing behavior; and 2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Because this defense was not in existence when the case was tried, Ellerth was sent back to the lower court for a new trial in which the employer would have an opportunity to raise this defense.
In Faragher, on the other hand, the court decided that the city's failure to disseminate its policy and keep track of the type of conduct complained of, as well as the policy's failure to assure “that the harassing supervisors could be bypassed in registering complaints,” demonstrated that the defense could not, as a matter of law, be employed. The city was therefore found to be vicariously responsible.
For the best protection against liability, employers must have a written, well-publicized and widely disseminated anti-harassment policy which does not force the employee to complain to the harasser about his or her own conduct. Employers should act swiftly and exercise reasonable care in correcting prohibited behavior.
While not required, it is advisable to provide training sessions for all employees. Failure to take advantage of the Supreme Court's instruction comes at the fiscal peril of all employers. BNH
Christopher Brigham is a senior associate in the New Haven office of Updike Kelly & Spellacy, P.C., practicing in the areas of professional liability and employment law. Intern Shea Szydlowski, assisted in the preparation of this article.
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