by Elliot L Epstein, Esq.
In a controversial 1998 opinion, the U.S. Supreme Court clarified a difficult and confusing issue of employment discrimination law — whether an employer can be held liable for the sexually offensive conduct of its supervisors if the employee has never complained to the employer and the employer has neither authorized the conduct nor been made aware of it. The case underscores the importance to all employers of creating and enforcing a clear, effective policy against sexual discrimination and harassment, and to all employees of promptly reporting violations of that policy whenever they occur.
The case, entitled Burlington Industries v. Ellerth, put to rest the conflicting views of the various federal courts as to the employer’s responsibility under Title VII — the federal statutory scheme which prohibits gender discrimination in the workplace — for the unauthorized acts of supervisory personnel.
The facts of Burlington Industries presented a typical discrimination scenario of the type known as “hostile work environment.” In a hostile work environment case, a supervisory usually makes repeated boorish and offensive sexual remarks or gestures to an employee and expects the employee to submit to this conduct without complaint. The supervisor may also threaten the employee with loss of such tangible rewards as employment, pay benefits, position, or desirable duties, if the employee fails to submit. (In the case before the Supreme Court the supervisor had made the all-too-familiar implied threat, “I could make your life very hard or very easy at Burlington.”). The threat alone is often sufficient to bring the employee to heel. In a surprising number of instances, employees, intimidated by the supervisor’s power, do not resort to the employer’s procedures for filing complaints about sexual harassment. They simply submit and remain silent, waiting until after they have left the job to air their complaints through legal channels.
The Supreme Court stated that whenever a supervisor takes tangible, adverse job measures against an employee, because the employee has refused to submit to unwelcome sexual conduct by the supervisor, the employer will be found liable. However, when no tangible, adverse job action has been taken against the employee, the innocent employer may escape legal responsibility. The Court stated that employer may successfully defend against sex harassment suits, if:
a. It has a suitable stated policy against sexual harrasment; b. It has taken reasonable care to prevent and correct promptly any sexually harassing behavior; and c. The employee unreasonably failed to take advantage of any preventative or corrective procedures provided by the employer to address sexual harrasment complaints.
For employers, the lesson of Burlington Industries is clear. They need to take sexual harassment laws very seriously. They must have a clear, written policy in place. They must educate their workforce, and particularly their supervisory employees, about the policy. They must have an effective, reliable system in place for monitoring compliance and for investigating complaints. They must consistently and predictably mete out discipline, up to and including termination, for violations of the policy. For employees, the lesson is also clear. They should promptly report sexual harassment in the workplace whenever it occurs.
Epstein has been in private practice in Lewiston-Auburn area for 20 years. He concentrates in civil trial work that encompasses not only real estate, but employment, personal injury, malpractice contract, commercial, intellectual property, and construction disputes.
[from The I & R Connection Volume 1; Issue 1 - Winter 1999]