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In 1998, the U.S. Supreme Court made rulings in a number of cases regarding sexual harassment in the workplace. These decisions have changed the way sexual harassment is viewed from a legal perspective. The Supreme Court's decisions dramatically affect employers and their liability in such cases. The following points were among those clarified:
An employer can be found liable even when it is unaware that harassment is taking place.
Sexual harassment is perpetrated by men and women. Same-sex harassment is illegal.
The Court dissolved the distinction between "quid pro quo" sexual harassment (when a job benefit or promotion is made contingent on sexual favors) and "hostile work environment" sexual harassment. Companies are liable even if their supervisors create a sexually harassing environment. Even when the supervisor is violating explicit company policies against sexual harassment, the employer may also be liable.
An employee does not need to have submitted to unwanted advances, nor have suffered a negative job consequence (e.g., firing, demotion, or less favorable working conditions), to legitimize a sexual harassment claim.
Same-sex harassment is now considered a legitimate category, without considering either party’s sexual orientation.
Conduct must be hostile or abusive under a "reasonable person" standard.
While announcing this stiff rule, the Court also built in a strong defense for employers. The defense must show that the employer took reasonable steps to prevent sexual harassment and that it took the necessary steps to stop it once it had been discovered.
Employers will need to make sure that employees are aware of their rights and have a way to complain to management if need be.
Three cases brought before the Court expand on these points:
The “Quid Pro Quo” category of sexual harassment occurs when an employee is forced to submit to the sexual harassment in order to keep his/her job, or when the employee suffers negative employment consequences (e.g., being demoted or given less favorable working conditions) for submitting to or rejecting the harassment.
The U.S. Supreme Court has broadened the “Quid Pro Quo” category, ruling that a company can be held liable for sexual harassment even when an employee has not submitted to unwanted sexual advances, nor suffered unfavorable employment consequences. Basing its decision on “common sense,” the Court ruled that the employee might still be the victim of sexual harassment or a hostile work environment. This can be true even when the job circumstances remain the same, or have improved. If a strong written anti-harassment policy and/or investigation procedure is in place and the employee does not take advantage of it, however, the case is considered weak. (Burlington Industries, Inc., v. Ellerth, 118 S. Ct. 2257 .)
The U.S. Supreme Court has ruled that sexual harassment can occur between members of the same sex, without regard to sexual orientation. Previously, lower courts were divided on the issue, with some considering the sexual orientation of the harassed and the harasser in order to reach a decision.
With this ruling, what might have previously been regarded as horseplay, pranks, flirtations, and discriminations between men and men, or women and women can be considered sexual harassment. The burden, however, is on the plaintiff to prove that the harassment was gender-based. According to the Court, “Common sense and an appropriate sensitivity to social context will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.” (Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 .)
If an employer is unaware that harassment is taking place, it can still be found liable. The U.S. Supreme Court has ruled that an employer must act reasonably to prevent sexual harassment in its work place. In this ruling, a city had a written anti-harassment policy, but had not distributed the information to employees, nor did it have a sexual harassment complaint procedure in place.
Because employees were unaware of the policy and were given no direction on how to resolve a harassment situation, the Court found the city had not acted reasonably, and found it liable. The Court’s ruling was clear: Employers must work to prevent sexual harassment, and to stop it once it is discovered. (Faragher v. City of Boca Raton, Florida, 118 S. Ct. 2275 .)
Because employers who are unaware that harassment is taking place can still be found liable, workplace e-mails have become a point of vulnerability. Many people believe that privacy laws protect e-mail communications, which is incorrect. Employers have the right to monitor workplace e-mails. Few, however, have the desire or resources to do so.
A strong anti-harassment policy and resolution procedure, which is understood by the employees, is considered the most effective means to protect the employer, and is the best course of action for an employee.