When courts considered sexual harassment
cases in the past, their analysis began with which of the two recognized types
of harassment was before them. "Quid pro quo" harassment refers to
employment decisions based on unwelcome sexual advances or other sexual conduct
directed at an employee. "Hostile environment" harassment occurs
when severe and pervasive conduct of a sexual nature has no tangible effect
on an employee's job but subjects an employee to an intimidating, hostile, or
abusive working environment.
In a pair of cases recently decided,
the U.S. Supreme Court has diminished the importance of categorizing harassment
in this manner. Quid pro quo harassment and hostile environment harassment remain
as helpful descriptions of two types of scenarios in which harassment may violate
federal and state employment discrimination statutes. However, on the important
issue of whether an employer can be held liable for harassment by a supervisor,
the Court has announced a new set of criteria. In some respects, the Court has
left employers more exposed to liability, but it has not left them defenseless.
The Court set out to balance and advance
two public goals: holding employers responsible for harassment of employees
that results from abuse of supervisory authority, and encouraging employers
to set up, and employees to use, antiharassment policies and procedures. The
bad news for employers is that they will now be held liable for harassment by
a supervisor with authority over the victim, regardless of whether the employer
was guilty of negligence or any other degree of wrongdoing. If the harassment
also culminates in a tangible detriment to the harassed employee, such as termination,
demotion, or an undesirable reassignment, there is no defense available to the
employer.
If there is good news for employers
in the Supreme Court rulings, it concerns the situation in which a supervisor
has harassed an employee but the harassment never results in a tangible job
detriment. There, the employer can defend itself from liability if it can prove
both: (1) that it 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 by other means.
While adoption of an antiharassment
policy will not be essential to the first part of the defense in every case,
the Court intimated that having and applying such a policy that is tailored
to the employment circumstances will go a long way in building a defense. Similarly,
while the second part of the defense can be supplied with evidence on various
ways in which an employee did not act reasonably to avoid harm, an employee's
unreasonable failure to use the employer's complaint procedure will usually
be sufficient by itself.
It is important to bear in mind that
in its two recent decisions the Court was only concerned with harassment committed
by someone who is either the victim's immediate supervisor or has a higher rank
than the victim in the chain of command. With regard to conduct between fellow
employees of equal rank, an employer will be liable for sexual harassment only
where it knows or should have known of the harassment and failed to take immediate
and appropriate corrective action. Harassment of an employee by a lower‑level
fellow employee is not as easily attributed to the employer because the employer
is less likely to know about and be able to stop the offending conduct. Thus,
a showing of employer liability requires more in such cases than when the harasser
is a supervisor.
