| Under Title VII of the Civil Rights Act of 1964, adverse discrimination against employees on the basis of sex is unlawful. Sexual harassment is included within this prohibition. The Supreme Court has clearly determined that when a supervisor sexually harasses a subordinate, the employer may be found liable for that conduct.
What is Sexual Harassment?
The Equal Employment Opportunity Commission (EEOC) and the courts have expanded upon the language of Title VII to explain what conduct may be considered actionable sexual harassment. Courts have divided harassment claims into two categories: (1) quid pro quo harassment and (2) hostile work environment harassment. Quid pro quo harassment involves situations in which employees are granted or denied a tangible employment benefit for submitting to or rebuffing a supervisor's unwelcome sexual advances. Hostile work environment harassment is shown not through the denial of a tangible benefit but through the existence of an abusive working environment caused by severe or pervasive sexual harassment.
Vicarious Liability
Under the principle of vicarious liability, an employer is often held financially responsible for the actions of its employees, whether or not the employer approved of the actions or knew that the actions occurred. Vicarious liability can be applied to an employer for violations of Title VII by its supervisors.
Tangible Employment Action
The Supreme Court has ruled that questions of vicarious liability are determined by agency principles. Generally, if a supervisor takes an adverse tangible employment action against an employee, such as those found in quid pro quo harassment, that action becomes the act of the employer. Thus, the employer is generally vicariously liable for a supervisor's quid pro quo sexual harassment of a subordinate.
No Tangible Employment Action
An employer is also subject to vicarious liability for an actionable hostile environment created by a supervisor. When no tangible employment action has been taken, however, the employer may raise an affirmative defense to liability or damages. This defense requires proof of two elements:
1. That the employer exercised reasonable care to prevent and promptly correct the unlawful behavior, and
2. That the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
If the employer can prove its affirmative defense, it will not be vicariously liable for the supervisor's sexual harassment of the employee. In order to ensure that it can prove its affirmative defense should the need arise, an employer should establish, publicize, and enforce strong anti-harassment policies in the workplace. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |