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In The Hostile Work Place Podcast, Episode #2, we discuss the most explosive of work subjects, sexual harassment. During the show we explain how the U.S. Supreme Court recognizes two types of sexual harassment:
- Quid Pro Quo (latin for “something traded for something”)
- Hostile Work Environment based on sex
We also explain how you can evaluate whether or not an action can be considered sexual harassment by using the idea of “unwelcomeness”.
If unwelcomness is established, a court will look to four factors to evaluate whether a hostile work environment based on sex exists. Those four factors are:
- Frequency of the offensive conduct
- Severity of the offensive conduct
- Whether the offensive conduct was physically threatening or intimidating
- Whether the offensive conduct interfered with the performance of your job duties
The case where these four factors were discussed most recently is Reeves v. C.H. Robinson Worldwide Inc. (April 28, 2008).
The two U.S. Supreme Court cases mentioned in the show are Burlington v. Ellerth and Faragher v. Boca Rotan. Summaries of each and links to downloadable versions of the full case are immediately below. However, if you would like to go straight to the forum where we are discussing this episode of the podcast just click HERE.
Facts of the Case
After working for Burlington Industries for 15 months, Kimberly B. Ellerth quit because she allegedly suffered sexual harassment by her supervisor – Ted Slowik. Despite her refusals of Slowik’s advances Ellerth did not suffer any tangible retaliation and was, in fact, promoted once. Moreover, while she remained silent about Slowik’s conduct despite her knowledge of Burlington’s policy against sexual harassment, Ellerth challenged Burlington claiming that the company forced her constructive discharge.
Can an employee, who despite refusing sexually harassing advances by a supervisor suffers no adverse job-related consequences, recover against an employer under Title VII of the Civil Rights Acts of 1964, without showing that the employer was responsible for the supervisor’s harassing conduct?
Yes. In a 7-to-2 opinion, the Court held that employers are vicariously liable for supervisors who create hostile working conditions for those over whom they have authority. In cases where harassed employee’s suffer no job-related consequences, employers may defend themselves against liability by showing that they quickly acted to prevent and correct any harassing behavior and that the harassed employee failed to utilize their employer’s protection. Such a defense, however, in not available when the alleged harassment culminates in an employment action, such as Ellerth’s.
Facts of the Case
After resigning as a lifeguard, Beth Ann Faragher brought an action against the City of Boca Raton and her immediate supervisors, alleging that the supervisors had created a sexually hostile atmosphere by touching, remarking, and commenting. Faragher asserted that this conduct constituted discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court concluded that Faragher’s supervisors’ conduct was sufficiently serious to alter the conditions of her employment and constitute an abusive working environment. The court then held that the city could be held liable. In reversing, the en banc Court of Appeals held that Faragher’s supervisors were not acting within the scope of their employment when they engaged in the harassing conduct, that knowledge of the harassment could not be imputed to the City, and that the City could not be held liable for negligence in failing to prevent it.
May an employer be held liable under Title VII of the Civil Rights Act of 1964 for the acts of an employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination?
Yes. In a 7-2 opinion delivered by Justice David H. Souter, the Court held that an employer is vicariously liable under Title VII of the Civil Rights Act of 1964 for actionable discrimination caused by a supervisor. The Court also held that such liability is subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of the plaintiff victim. “The City had entirely failed to disseminate its policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors like [Faragher’s],” wrote Justice Souter, “[u]nder such circumstances, we hold as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors’ harassing conduct.”