Friday, August 20, 2010

Unlawful Harassment By Supervisors

My last post was about speaking up and letting employers know that you are experiencing abuse or some other problem at work. This post speaks about liability. One of the reasons that employers might not be liable for harassment includes that an "employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

Failing to report harassment to anyone would likely be seen as not taking advantage of preventive or corrective opportunities. How could the employer stop your harassment if you didn't report it and take advantage of workplace procedures to make things better? So, that's the connection to the last post. Keep reading for more:


In Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), the Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors (read: employers are liable for harassment done by/committed by others).

The standard of liability set forth in these decisions is premised on two principles: 1) an employer is responsible for the acts of its supervisors, and 2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.

In order to accommodate these principles, the Court held that an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action (e.g., termination, suspension, transfer, demotion, etc.). In order to avoid liability, the employer must show that it exercised reasonable care to prevent and correct promptly any harassing behavior, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

While the Faragher and Ellerth decisions addressed sexual harassment, the Court’s analysis drew upon standards set forth in cases involving harassment on other protected bases. Moreover, the Commission has always taken the position that the same basic standards apply to all types of prohibited harassment. Thus, the standard of liability set forth in the decisions applies to all forms of unlawful harassment [including racially based harassment].

While the anti-discrimination statutes seek to remedy discrimination, their primary purpose is to prevent violations. The Supreme Court, in Faragher and Ellerth, relied on Commission guidance which has long advised employers to take all necessary steps to prevent harassment.

The question of liability arises only after there is a determination that unlawful harassment occurred. Harassment does not violate federal law unless it involves discriminatory treatment on the basis of race, color, sex, religion, national origin, age of 40 or older, disability, or protected activity under the anti-discrimination statutes.

The anti-discrimination statutes are not a “general civility code.” Thus federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not “extremely serious.” Rather, the conduct must be “so objectively offensive as to alter the ‘conditions’ of the victim’s employment.” The conditions of employment are altered only if the harassment culminated in a tangible employment action or was sufficiently severe or pervasive to create a hostile work environment. Existing Commission guidance on the standards for determining whether challenged conduct rises to the level of unlawful harassment remains in effect.

An employer is liable if it knew or should have known of the misconduct, unless it can show that it took immediate and appropriate corrective action.



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