Employment Law - Sexual Harassment By Supervisors

Sexual Harassment by Supervisors

Two recent United States Supreme Court cases have changed the way our courts look at sexual harassment. When courts considered sexual harassment cases in the past, their analysis began with the determination of which of the two recognized types of harassment was being claimed. The first, "quid pro quo" harassment, refers to employment decisions based on unwelcome sexual advances or other sexual conduct directed at an employee. The second, "hostile environment" harassment, occurs when severe and pervasive conduct of a sexual nature subjects an employee to an intimidating, hostile, or abusive working environment but has no tangible effect on an employee's job.

The two Supreme Court decisions have 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 bad news for employers is that they will now be held liable for harassment by a supervisor who has authority over the victim, regardless of whether the employer was guilty of negligence or any other degree of wrongdoing in conjunction with the harassment. 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 a 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 anti-harassment 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. Recent cases in Illinois support this premise. Similarly, while the second part of the defense can be supplied by 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.

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