Assessing Harassment Liability

Under the new rules established by the Supreme Court, employers should ask the questions in the following checklist to determine the extent of possible liability for sexual harassment.

1. Did sexual harassment occur? To determine liability, the Court said the traditional categories of quid pro quo harassment or hostile-environment harassment are no longer relevant. The key question is whether the objectionable conduct by a supervisor or a co-worker is so severe and pervasive as to alter the working conditions of the victim’s employment.

2. Was the harasser a co-worker or a supervisor? A supervisor is someone with immediate or successively higher authority over an employee. If the harasser is a co-worker, the employer will be liable for sexual harassment under traditional negligence standards. That is, the court will ask whether the employer knew or should have known about the harassment, and if so, did the employer take immediate and effective corrective action when harassment was discovered? If the harasser is a supervisor, then the following questions must be answered to determine liability.

3. If the harasser was a supervisor, was a tangible employment action taken against the employee? A tangible employment action, according to the Court, constitutes a significant change in employment status such as hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. If a tangible employment action did take place, the employer is automatically liable for sexual harassment.

4. Did the employer exercise reasonable care to avoid harassment and eliminate it when it might occur? If no tangible employment action took place, the employer can assert as an affirmative defense that it had an effective sexual harassment policy and complaint procedure. If no policy or procedure is in place to prevent harassment, the employer will be liable for sexual harassment by a supervisor.

5. Did the employee exercise reasonable care to take advantage of the employer’s safeguards and otherwise prevent harm that could have been avoided? If an employer can demonstrate it had an effective anti-harassment policy and complaint procedure in place, it must also show the employee unreasonably failed to use the complaint procedures that were available in the workplace. Proof of the existence of both an effective policy and the employee’s unreasonable failure to follow that policy will mean that the employer is not liable for sexual harassment or that damages for any harassment will be reduced.