Sexual Harassment by Supervisors What is Immediate and Appropriate Corrective Action

Issue: In the workforce training you developed since last summer’s Supreme Court decisions in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), you emphasize that the company is vicariously liable for unlawful harassment by supervisors. You stress (1) the company is responsible for the acts of its supervisors and for preventing harassment and (2) employees are responsible for avoiding or limiting the harm from harassment. In your training, you attempt to explain that when there is no tangible employment action, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements:

You feel confident of the preventive measures you’ve implemented in developing and enforcing an antiharassment policy and complaint procedure. But supervisors’ questions about what to do if harassment is reported make it clear they don’t know what “immediate and appropriate corrective action” means.

Answer: “Immediate and appropriate corrective action” will ultimately depend on the particular factual circumstances and, in some cases, the nature of the employer’s workforce. However, here are some guidelines from the EEOC:

Effectiveness.
Remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. These remedial measures need not be those that the employee requests or prefers, as long as they are effective.

Discipline.
In determining discipline, keep in mind that the employer could be found liable if the harassment does not stop. At the same time, overly punitive measures may subject the employer to claims such as wrongful discharge and may simply be inappropriate. To balance these concerns, disciplinary measures should be proportional to the seriousness of the offense. If the harassment was minor, such as a small number of “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary. On the other hand, if the harassment was severe or persistent, suspension or discharge may be appropriate.

Impact on complainant.
Remedial measures should not adversely affect the complainant. Thus, for example, if it is necessary to separate the parties, then the harasser should be transferred (unless the complainant prefers otherwise). Remedial responses that penalize the complainant could constitute unlawful retaliation and are not effective in correcting the harassment. Remedial measures should be designed to put the employee in the position he or she would have been in had the misconduct not occurred.

• oral or written warning or reprimand;
• transfer or reassignment;
• demotion;
• reduction of wages;
• suspension;
• discharge;
• training or counseling of harasser to ensure that he or she understands why the conduct violated the employer’s anti-harassment policy; and
• monitoring of harasser to ensure that harassment stops.

• restoration of leave taken because of the harassment;
• expungement of negative evaluation(s) in employee’s personnel file that arose from the harassment;
• reinstatement;
• apology by the harasser;
• monitoring treatment of employee to ensure that he or she is not subjected to retaliation by the harasser or others in the workplace because of the complaint; and
• correction of any other harm caused by the harassment (e.g., compensation for losses).

Complaint procedure.
Instruct all supervisors and managers to address or report to appropriate officials complaints of harassment, regardless of whether they are officially designated to take complaints and regardless of whether a complaint was framed in a way that conforms to the organization’s particular complaint procedures. For example, if an employee files an EEOC charge alleging unlawful harassment, the employer should launch an internal investigation even if the employee did not complain to management through its internal complaint process.

Furthermore, due care requires management to correct harassment regardless of whether an employee files an internal complaint, if the conduct is clearly unwelcome. If there are areas in the workplace with graffiti containing racial or sexual epithets, management should eliminate the graffiti, not wait for an internal complaint.

Train.
Ensure that all supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training can help achieve that result. Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

An employer should keep track of its supervisors’ and managers’ conduct to make sure that they carry out their responsibilities under the organization’s anti-harassment program. For example, an employer could include such compliance in formal evaluations.

Screen.
Reasonable preventive measures include screening applicants for supervisory jobs to see if any have a record of engaging in harassment. If so, it may be necessary to reject a candidate on that basis or to take additional steps to prevent harassment by that individual.

Track.
Finally, keep records of all complaints of harassment. Without such records, the employer could be unaware of a pattern of harassment by the same individual. Such a pattern would be relevant to credibility assessments and disciplinary measures.

Cite: The information reproduced above is taken from the EEOC Employment Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, released by the EEOC on June 21, 1999.

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