John Conyers, Al Franken, Mark Halperin, Dustin Hoffman, Garrison Keillor, Matt Lauer, Bill O’Reilly, Michael Oreskes and Harvey Weinstein.
The list of individuals accused of sexual harassment seems to grow longer every day. And while sexual harassment in the workplace isn’t a new issue, its increased prominence in the national media will cause ripple effects across the country.
After Anita Hill accused
now-Supreme Court Justice Clarence Thomas during his 1991 Senate confirmation hearings of sexually harassing her when the two worked at the Equal Employment Opportunity Commission, the EEOC saw a 400 percent increase in sexual harassment charges in the subsequent year. It’s not out of the realm of possibility the EEOC and Colorado Civil Rights Division, the state equivalent of the EEOC, will see a similar increase.
As background, Title VII to the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, sex and national origin. When enacted, Title VII protections didn’t include “harassment” — only “discrimination.”
In 1980, the EEOC issued guidelines identifying it would treat harassment based on a protected classification as a violation of Title VII. A short time later, the U.S. Supreme Court issued its first opinion regarding sexual harassment in Meritor Sav. Bank FSB v. Vinson. Meritor incorporated many of the EEOC guidelines. For example the court ruled that even though Title VII only protected against discrimination, Title VII also covered harassment because harassment was a form of sex discrimination. The court further determined that plaintiffs can establish a sexual harassment claim by proving the offending conduct was severe or pervasive, created a hostile or abusive working environment, was unwelcome and based on the plaintiff’s gender.
As the Supreme Court later explained in Harris v. Forklift Systems Inc., a hostile or abusive working environment must be both objectively hostile or abusive and subjectively hostile or abusive. If conduct isn’t objectively hostile or abusive or if the individual who complains about the conduct doesn’t subjectively find it to meet that level, the conduct doesn’t constitute unlawful harassment.
The Supreme Court again altered the landscape for sex harassment cases when it issued two decisions in Burlington Industries Inc. v. Ellerth and Faragher v. City of Boca Raton on the same day in 1998. In those decisions, the court ruled employers can be held liable for unlawful harassment by supervisors. In short, this means an employer is responsible for a supervisor’s acts, whether or not the employer has knowledge of those acts. But these cases also created affirmative defenses for an employer if the employer establishes: the employer exercised reasonable care to prevent (the employer had handbook policies, including reporting policies) and promptly corrected any harassing behavior and the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer.
To reduce exposure for sexual harassment claims, employers are wise to enact policies regarding sexual harassment and other protected classifications and to require training for all employees, with particular emphasis for supervisors, about protected-classification harassment. In fact, in most EEOC investigations, the EEOC will request the employer to provide the EEOC with information about the employer’s recent trainings. The EEOC believes that without such training, the employer isn’t taking reasonable care to prevent such harassment.
In addition, employees should be warned by written policy and training the employer prohibits unprofessional conduct in the workplace and that employees could be disciplined or discharged for unprofessional conduct, even if the conduct isn’t illegal. For example, one sexually
off-color joke is rarely so severe or pervasive it creates an illegal hostile work environment. Nevertheless, such jokes should be prohibited as unprofessional conduct because they can lead to a poor work environment as well as charges being filed against the employer.
While it’s easy to set aside employee handbooks and put off employee trainings to attend to more pressing matters, such efforts should remain at the forefront in preventing inappropriate workplace conduct and reducing employer liability.