Employment Law
Sexual Harassment
I.
Recent Cases Underscore The Importance Of
Effective Sexual Harassment Policies and Procedures
It has been two years since the United States Supreme Court provided its guidance in Jansen v. Packaging Corp. of America and Faragher v. City of Boca Raton for dealing with sexual harassment complaints and the importance of having a strong policy against workplace sexual harassment.
In deciding the Jansen and Faragher cases, the Supreme Court held that an employer is subject to vicarious liability under Title VII of the Civil Rights Act of 1964 for an actionable hostile work environment created by a supervisor with immediate or higher authority over the employee. This means that the employer can be held liable for the supervisors actions, whether or not the employer knew of the supervisors conduct, participated in that conduct or approved of the conduct.
The Supreme Court also clarified that a complaining employee may recover damages against the employer under Title VII, even though the employee suffers no tangible job consequences, and without showing that the employer was otherwise negligent or at fault for the supervisors conduct.
Notwithstanding these sweeping statements, the Supreme Court held that when the sexual harassment results in no tangible employment action against the employee, the employer can raise an affirmative defense to avoid liability. In this way, the employer may negate liability by showing that it exercised reasonable care to promptly prevent and correct any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities that the employer put in place or to otherwise avoid the harm.
The message of the Jansen and Faragher cases was clear: there is every reason to institute and to enforce a clear and reasonable policy against sexual harassment in the workplace, and to have effective procedures that are promptly enforced, because doing so will be a crucial element in the employer's proof that it exercised reasonable care to prevent and to correct promptly any sexually harassing behavior.
While proof that the employer had a written policy and a complaint procedure is not in every instance necessary in order to prove the first prong of the employer's affirmative defense, the need for written policy and for clear guidance to offended employees is an appropriate matter to be litigated in addressing this first element.
In the two years since these Supreme Court decisions, the Appellate Courts have worked with the Supreme Court's analysis and have left some questions open for further development. However, in these cases and other cases, the Court has indicated that a viable policy against workplace sexual harassment will contain a clear anti-harassment statement, will contain an explanation of what constitutes sexual harassment, and will enact a reasonable complaint procedure.
Moreover, Illinois employers who are government contractors or government grant recipients are already required to have a written anti-harassment policy and to include in that policy other specific notices to employees, including an explanation of the procedures for filing a complaint at the appropriate state agency.
This is an important time for our clients and for prospective clients to review their employment policies and their employment handbooks, with particular attention to anti-workplace sexual harassment policies. We are pleased to assist with this review or with the preparation of a strong policy against sexual harassment in the workplace.
If you are reviewing or preparing a new policy, keep these items in mind:
1. Specify what conduct is unacceptable, making it clear exactly what type of conduct the company is against, be it sexual, racial or gender-related harassment.2. Tell employees how to register a complaint. Where possible, provide two people to hear complaints together, or at different levels. And don't forget training sessions or bulletins to circulate to your employees so that all employees are advised or aware of complaint procedures.
3. Spell out the consequences for employees who are found to have engaged in harassment. Just as clearly, indicate strongly the promise not to penalize or pressure employees who report harassment.
4. Once in place, take prompt remedial action when problems surface.
Marc D. Sherman
II.
Equal Opportunity Harasser Does Not Give Rise
To Liability For Sex Discrimination Under Title VII
The United States Supreme Court has decided that Title VII=s ban on sex discrimination in the terms and conditions of employment protects men as well as women and applies to same-sex as well as opposite-sex sexual harassment. The Supreme Court has said that the critical issue under Title VII is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the opposite sex are not exposed.
In a recent decision, the United States Court of Appeals for the Seventh Circuit held that under this Supreme Court guidance an employer is not liable under Title VII of the Civil Rights Act of 1964 for a supervisor=s sexual solicitation of both a male employee and a female employee who are married to each other.
The case of Holman vs. Indiana, decided in May, 2000, is a significant departure from the handling of such cases by the Seventh Circuit.
In the Holman case, both employees work in a state=s maintenance department. In December 1995, the female employee alleged that her supervisor began sexually harassing her by touching her body, standing too closely, asking her to go to bed with him, and in other ways. Her husband, also an employee with the state agency, alleged that the supervisor had been sexually harassing him, as well, by asking for sexual favors, touching him, and in other ways.
In making its determination, the Seventh Circuit affirmed the district court=s dismissal of the case because, as the district court had said, both employees were alleging harassment by the same supervisor and, as a matter of law, they could not prove that the harassment occurred Abecause of sex@. The court noted that Title VII is not a Acode of workplace civility@, but instead was intended to prevent disparate treatment of men and women in employment.
We will be watching for further developments.
Marc D. Sherman
This article is intended to highlight areas of interest for our clients and others. It is not intended to be legal advice and it is not a substitute for advice and consultation with your lawyer.