Sexual Harassment

The U.S. Supreme Court recently ruled on three sexual harassment cases that will dramatically change rules regarding who can make a claim of harassment and whether an employer is liable for the claim. The court first ruled that anyone may make a claim that they were harassed by anyone else, regardless of gender or sexual persuasion. The court then ruled that employers will be liable for hostile work environment harassment created by supervisors regardless of any training, policies or other reasonable preventive steps the employer may have taken.

This article will first discuss what those changes are and then make recommendations to help employers minimize their potential liability.

What Has Not Changed

The courts have divided sexual harassment into two categories, Quid Pro Quo harassment and Hostile Work Environment harassment. Quid Pro Quo harassment occurs when a supervisor or other person empowered by an employer takes some tangible employment action because of sex, race, color, religion or national origin. A tangible employment action is usually 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.

The courts have uniformly found that an employer will be liable for Quid Pro Quo harassment regardless of any preventive measures taken. This is known as vicarious liability and has not been changed, although the recommendations offered in this article also apply to Quid Pro Quo harassment.

What Has Changed Part I

Anyone May Bring A Claim Against Anyone

The second category of harassment is Hostile Work Environment, which occurs when there is no tangible employment action but there is severe and pervasive conduct of a sexual nature in the workplace. Some of the more common examples are male employees constantly requesting dates or sexual relations with female employees or a general "locker-room" atmosphere. Because the conduct must be of a sexual nature, the courts have always been willing to find a valid Hostile Work Environment claim when the alleged harasser and victim were different sexes.

However, when same-gender claims began to arise, the courts began to divide. Some courts found there was no claim because there was no physical sexual nature between employees of the same gender. Others found there could only be a claim if either the harasser or victim was homosexual (thus adding a sexual component), and a few courts found there was always a claim. In a short decision of less than four pages, the Supreme Court found that there is nothing in the law which would exclude same-sex claims of harassment, and therefore such claims can be made the same as any others.

What Has Changed Part II

Preventive Measures Are No Longer A Defense

While same-sex claims probably will only make up a small percentage of all sexual harassment claims, nearly every one filed includes a claim of Hostile Work Environment harassment. Prior to June 26 of this year, an employer could avoid liability for most Hostile Work Environment claims if he or she did not know about the Hostile Work Environment and had taken reasonable measures to prevent sexual harassment in the workplace. These measures usually were in the form of training and/or a comprehensive anti-harassment policy.

Some courts even went so far as to find that if an employer took quick and effective actions to correct a Hostile Work Environment once aware of it, then that employer would not be liable to the employee. The logic behind such decisions was that the primary purpose of the law was to prevent harassment, not to compensate victims. Therefore not holding employers liable when they took preventive and/or corrective measures would encourage prevention and be consistent with the primary purpose of the law. The Supreme Court recognized and agreed with this primary purpose in its recent decisions, but then undermined that purpose in its ruling.

In companion cases issued on June 26, the Supreme Court ruled that employers would be vicariously liable for Hostile Work Environment harassment by a supervisor. This means that if a there is Hostile Work Environment harassment, even if the employer did not know about it and had taken extraordinary measures to prevent it, that employer will still be liable. The Supreme Court did include a possible exception, but the effect of the decisions will be that an employer will have no control over his or her potential liability for Hostile Work Environment harassment, no matter how great of preventive measures taken.

The exception outlined by the Supreme Court does bear mentioning but offers little comfort to employers. The court, in its decisions, tried to explain it wants to give credit to employers who take preventive measures, but this credit is easily destroyed by the complaining employee. The exception takes the form of an affirmative defense, which in legal terms means that the employer has the burden of proving the elements of the defense. Those elements are:

(a) "that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and

(b) "that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

While this may at first appear to reward the employer who takes preventive and/or corrective measures, it is mostly illusory. As pointed out by Supreme Court Justice Clarence Thomas, the only thing an employee needs to do to defeat this defense is to either try to take advantage of the preventive or corrective opportunities or to show that not doing so was reasonable. The end result is that the employee has the power to negate the affirmative defense. Further, in doing so, the employee may actually bolster his or her case.

Consider an example: An employer has a strong anti-harassment policy with a reasonable reporting procedure. The employee reports a case of Hostile Work Force harassment. At this point, the affirmative defense is no longer available and the employer is already liable if harassment has occurred.

But it gets worse. Following policy, the employer investigates the report and determines there was a Hostile Work Environment. The employer is then faced with a no-win situation. He or she must either take corrective action to stop the harassment, which may be used against it by the employee as an admission there was harassment, or not take action and risk further liability from the continued harassment. The result is that an employer who took all reasonable measures to prevent a Hostile Work Environment and then promptly took action when learning of such an environment is still liable to the employee.

Practical Advice

Prior to these recent cases, the best approach was to have a st