BOND, SCHOENECK & KING, LLP
LABOR LAW INFORMATION M EMO
July 1998
RESPONDING TO THE RECENT
SUPREME COURT PRONOUNCEMENTS
CONCERNING SEXUAL HARASSMENT
Recently, the United States Supreme Court
issued two rulings (Faragher v. Boca Raton
and Burlington Industries v. Ellerth), in which
it attempted to clarify employer liability for
sexual harassment. These decisions establish
that an employer can be liable for harassment
by a supervisor even when it did not know of
the harassment and the employee suffered no
negative job consequences. While expanding
potential liability for employers, the Court
also concluded that employers could defend
themselves against many sexual harassment
claims by simply showing that they had taken
reasonable steps to prevent or correct
harassment in the workplace and that the
employee had unreasonably failed to take
advantage of existing complaint procedures.
Factual Background
Although Faragher and Ellerth are in many
respects quite different, the plaintiffs in both
cases never complained to their employers
about harassment during their employment.
Ms. Faragher was a lifeguard for the City of
Boca Raton. She claimed that two of her
supervisors harassed her through offensive
physical contact and vulgar comments. The
City argued that it could not be held liable
for the supervisor’s conduct because it had
no notice or knowledge of the harassment.
Ms. Ellerth claimed that a supervisor
repeatedly made sexually suggestive
statements to her and implied that her
employment was dependent on her
acquiescence to his suggestive comments.
Although Ellerth did not acquiesce, she did
not suffer any harm to her employment, and,
in fact, was promoted. Ellerth argued that
her supervisor’s conduct constituted quid pro
quo sexual harassment, which would
automatically render the employer liable. The
employer, Burlington Industries, argued that
it should not be held liable because Ellerth
did not suffer a negative job consequence and
never complained about the alleged
harassment, even though Burlington had an
anti-harassment policy which included
procedures for making a complaint.
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© 1998 Bond, Schoeneck & King, LLP
The Impact of Faragher and Ellerth
In Faragher and Ellerth, the Supreme Court
rejected the distinction that previously existed
between quid pro quo and hostile environment
harassment for purposes of determining
employer liability. When an employee is
harassed by his or her supervisor, the Court
held the relevant determination is whether the
employee suffered a tangible job detriment, such
as discharge, demotion, denial of a promotion
or undesirable reassignment. If the employee
has suffered such a detriment, the employer
will be held liable for its supervisor’s conduct,
even if the employee never complained about
the harassment, the employer had no notice or
knowledge of the harassment, and the employer
had an anti-harassment policy. In contrast, if
the employee has not suffered a tangible job
detriment, the employer may defend itself by
establishing by a preponderance of the evidence
that: (i) it exercised reasonable care to prevent
or correct promptly any harassment (such as
by establishing an anti-harassment policy and
effective grievance mechanism for resolving
complaints); and (ii) the employee unreasonably
failed “to take advantage of any preventive or
corrective opportunities.”
What This Means For Employers
The Supreme Court rulings are problematic
for employers for several reasons. First, under
these rulings, when an employee suffers a
negative job consequence, the fact that the
employer had no knowledge of the supervisor’s
harassment is no defense -- even if the conduct
violated the employer’s rules. Second, even
in situations in which the employee did not
suffer a job detriment, an employer bears the
burden of affirmatively proving that it took
reasonable steps to prevent or correct
harassment and that the employee acted
unreasonably in failing to avoid the harm. In
other words, once the employee establishes that
harassment took place, the employee will
prevail unless the employer can affirmatively
prove the reasonableness of its own conduct
and the unreasonableness of the employee’s
conduct.
Third, these decisions are virtually certain
to increase sexual harassment claims against
employers. The Court’s rulings leave open for
future litigation many important questions. For
example:
•
What are reasonable efforts to prevent
harassment?
• When is an employee’s failure to report
harassment unreasonable?
• Who is a supervisor for liability
purposes?
• What is a “tangible job detriment” which
will result in vicarious liability for the
employer?
• Does this same analysis apply to other
forms of harassment prohibited by Title
VII or other discrimination Statutes?
These questions are all unanswered and left
to employers, trial courts and appellate courts
to resolve.
For additional information concerning this
information memo or our training, auditing
or investigating capabilities, please contact:
Nicholas J. D’Ambrosio
Richard C. Heffern
R. Daniel Bordoni
Louis P. DiLorenzo
–
–
–
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Albany
Buffalo
Syracuse
Syracuse
(518) 462-7421
(716) 853-7262
(315) 422-0121
(315) 422-0121
The Bond, Schoeneck & King, LLP Labor Law Information Memo is a publication for the clients and friends of
Bond, Schoeneck & King, LLP. The information contained in this Memo is not intended to be a substitute for
professional counseling or advice.
RECOMMENDED
ACTION PLAN
Rather than await clarification of the
unanswered questions and the litigation
likely to follow, we recommend that
employers be proactive and immediately
take steps to minimize or prevent liability
for harassment under Title VII and other
applicable state and federal laws.
Recommended actions include:
administrative assistants, technical or
professional employees) should receive the
special supervisory training. If these
employees are likely to learn of harassing
conduct or be perceived by rank and file
employees as possessing supervisory
authority, employers may wish to train them
in the handling and reporting of complaints.
1. Reviewing, updating and disseminating an anti-harassment policy and effective
complaint procedure which are in
compliance with the law and provide
alternative avenues for the filing of
complaints. The policy should be broad
enough to prohibit sexual harassment and
other forms of illegal harassment. The
policy should also strongly suggest that
employees should utilize the procedure if
they believe harassment has occurred.
3. Responding promptly and thoroughly
to complaints by conducting appropriate
investigations and taking corrective action.
2. Training employees (including parttime, temporary and casual employees) in
the law, the existence of the employer’s
policy, and their obligation to utilize the
complaint procedure. Special training for
supervisors and managerial employees
should include training in handling and
investigating complaints. Careful consideration should be given to whether certain
borderline supervisors (such as group
leaders, assistant supervisors or lead people)
and other quasi-supervisory or managerial
employees (such as auditors, inspectors,
4. Educating employees concerning the
employer’s position with respect to romantic
relationships between supervisors and
subordinate employees.
5. Communicating to supervisors and
managers, as well as others, that the
consequences of illegal harassment may be
termination and, perhaps, individual liability
on the part of the harasser to the victim or
to the employer.
6. Reviewing your existing policy,
procedures and training programs with
experienced labor counsel to ensure that you
are maximizing your opportunity to defend
or prevent claims of sexual harassment.
7. Reviewing with experienced labor
counsel the pros and cons of employment
practices liability insurance.
BOND, SCHOENECK & KING, LLP
HUMAN RESOURCES
TRAINING SERVICES
We recognize that a preventive strategy provides a substantial
return on investment for our clients. Accordingly, we offer a
variety of training programs suited for all levels of management
and covering a wide range of topics, which include:
• Sexual and Other Harassment
• Avoiding Discrimination
• Conducting Investigations
• Discipline and Discharge
• Employee Evaluations and Appraisals
• Fostering Positive Employee Relations
• Interviewing and Hiring
• Problem Resolution (Procedures)
• Supervising Ill, Injured or Disabled Employees
• Union Avoidance
• Working With Union Contracts
• Customized Training to Suit Client Needs
For more information about our training programs, please contact:
Nicholas J. D’Ambrosio, Jr.
Joseph C. Dole
111 Washington Avenue
Albany, NY 12210
(518) 462-7421
Robert A. Doren
Richard C. Heffern
Flaherty Cohen Office
135 Delaware Avenue
Buffalo, NY 14202
(716) 853-7262
R. Daniel Bordoni
Louis P. DiLorenzo
One Lincoln Center
Syracuse, NY 13202
(315) 422-0121