LEGAL
Among other things, Title VII of the Civil Rights Act of 1964 prohibits harassment of an employee based on the employee's race, color, religion, sex, or national origin and imposes various obligations on employers to protect their employees against various forms of harassment by non-employees (i.e., supervisors). One of the key, if not most important, factors in determining an employer's liability for workplace harassment is the status of the employee accused of engaging in harassment and case law has drawn a sharp line between co-workers and supervisors. Specifically, if the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions.
However, different rules apply when the harasser falls within the judicially accepted definition of a "supervisor" and in that situation the standard will be determined based on whether or not a "tangible employment action"—defined by the U.S. Supreme Court as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits" [Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)]—is involved.
If the supervisor's harassment culminates in a tangible employment action the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. [See Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)]
The federal Equal Employment Opportunity Commission (EEOC), when prosecuting harassment cases under Title VII, long relied on the meaning of "supervisor" in general usage and in other legal contexts, thus leading to an expanded view of employees that might be considered to be supervisors. However, in a recent decision handed down on June 24, 2013 the Supreme Court mandated a narrower approach by holding that an employee is a "supervisor" for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim [Vance v. Ball State University et al. 133 S.Ct. 2434 (June 24, 2013)].
The Court explained that its decision regarding the definition of supervisor took into account the fact that many modern organizations have abandoned a hierarchical management structure in favor of giving employees overlapping authority with respect to work assignments and that its concept of a supervisor could be readily applied and that, in fact, an alleged harasser's supervisor status could often be capable of being discerned before (or soon after) litigation commences and would likely be resolved as a matter of law before trial.
As to the concerns of the EEOC that employers might attempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions, the Court noted that employees would not be unprotected against harassment by co-workers who possess some authority to assign daily tasks and that in such cases a victim could still prevail by showing that the employer was negligent in permitting the harassment to occur and that the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor in determining negligence.
The actual impact of the Court's ruling remains to be seen and no employer can afford to be in a situation where a credible claim can be made that it was negligent with respect to its efforts to ensure that its workplace remains free of harassment. Prudent employees have already taken the following steps in developing their anti-harassment programs:
Training has long been recognized as a cornerstone of an effective anti-harassment program. For example, the EEOC stated in 1999 that an "employer should ensure that its supervisors and managers understand their responsibilities under the organization's anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result. Such training should explain the types of conduct that violate the employer's anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation." [See Equal Employment Opportunity Commission, "Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors," § V.C.2 (June 18, 1999)]
Implementation of the training program should be accompanied by an overall compliance review that address all potential federal and state legal obligations imposed on employers with respect to activities that constitute sexual harassment. While specific state laws need to be consulted, employers may be required to post anti-discrimination posters, which are available from state regulatory agencies. A written policy statement regarding sexual harassment should be prepared and adopted by the board of directors and made generally available to all employees.
In addition, companies should prepare additional materials for employees regarding sexual harassment, including information sheets or brief pamphlets or brochures that explain what actions might be prohibited, the steps that can be taken by employees to promote investigation of potentially unlawful behavior and the remedies available to persons subjected to unlawful sexual harassment. Many companies combine their policies and procedures relating to harassment and discrimination cases in a single document. Other useful tools include a notice to employees regarding the key terms of a company's sexual harassment policy and detailed policies and procedures describing how complaints can be filed and the steps that the company commits to take when a complaint is filed.
For further discussion of Title VII and other elements of Title VII compliance programs, including examples of the policies and other documents referred to above, please see Gutterman, Business Transactions Solutions, Employment Law Compliance (§§ 100:1 et seq.)
Alan S. Gutterman is the founder and principal of Gutterman Law & Business, a leading provider of timely and practical legal and business information for attorneys, other professionals and executives in the form of books, online content, newsletters, programs, training and consulting services. Mr. Gutterman has three decades of experience as a partner and senior counsel with internationally recognized law firms counseling small and large business enterprises in the areas of general corporate and securities matters, venture capital, mergers and acquisitions, international law and transactions, strategic business alliances, technology transfers and intellectual property, and has also held senior management positions with several technology-based businesses including service as the chief legal officer of a leading international distributor of IT products headquartered in Silicon Valley and as the chief operating officer of an emerging broadband media company. His publications are available on the Legal Solutions website or at Westlaw at Business Counselor. Mr. Gutterman can be reached at agutterman@alangutterman.com.
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