Beyond Harassment Prohibitions

Don’t just ‘set and forget’ anti-harassment policies.

By Andrew Slobodien and Elizabeth Peters Nov 1, 2012

​​1112cover.gifSince the landmark 1998 U.S. Supreme Court decisions in Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, most companies have recognized the importance of adopting equal employment opportunity and anti-harassment policies.

A new line of cases, however, suggests that this may not be enough.

Sexual Harassment Law

Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to fail or refuse to hire or to terminate any individual, or otherwise discriminate against any individual with respect to terms or conditions of employment, because of race, color, religion, sex or national origin. While the statute mentions specific employment decisions with immediate consequences, the Supreme Court has made clear that coverage under the law is not limited to economic or tangible discrimination.

In Meritor Savings Bank, FSB v. Vinson (1986), the Supreme Court first held that Title VII protects against sexual harassment where the conduct is severe or pervasive enough to alter the conditions of the victim's employment.

To be actionable, a sexually objectionable environment must be both objectively and subjectively offensive. In other words, the environment must be one that a reasonable person would find hostile or abusive.

Surrounding Circumstances

To determine whether an environment is sufficiently hostile or abusive, courts consider all surrounding circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating versus a mere offensive utterance, and whether it unreasonably interferes with an employee's performance.

Even in Meritor, however, the court suggested that employers could take steps to prevent or remediate their liability. For example, the court noted that a company grievance procedure might suggest that an employer should not be held liable. The court also suggested that employers could avoid liability based on the degree of corporate knowledge or culpability.

Type of Harassment

Accordingly, after Meritor, courts often determined employer liability according to the type of harassment alleged.

In cases of quid pro quo sexual harassment—where a supervisor threatened an employee with tangible adverse action if the employee refused to submit to sexual demands, and the supervisor subsequently carried out the threat—federal courts held employers vicariously liable, regardless of whether they were aware of the conduct at issue or took measures to prevent such conduct.

In cases involving hostile work environment sexual harassment—where a supervisor's unwanted sexual attention or unwelcome sexual overtures created an environment that was severe or pervasive enough to alter the conditions of the victim's employment and created an abusive working environment—many federal courts held employers vicariously liable only if they were negligent in discovering or remedying the harassment.

Employer's Defense

Along came the groundbreaking cases of Faragher v. City of Boca Raton, 524 U.S. 775,and Burlington Industries v. Ellerth, 524 U.S. 742, both in 1998.

In this pair of cases, the Supreme Court established a new standard for imposing vicarious liability on employers. When there is tangible adverse employment action by a supervisor—such as termination, demotion or undesirable reassignment—the employer is liable for the supervisor's discrimination, regardless of whether the employer approved, knew or should have known of the supervisor's actions.

When no tangible employment action is taken or when the harassment is not perpetrated by a supervisor, however, an employer may raise an "affirmative defense" to liability or damages. An affirmative defense is an argument or new information put forward by a defendant that wins a case even if what the plaintiff alleges is true.

Faragher and Ellerth established an affirmative defense if an employer can prove that it exercised reasonable care to prevent and correct harassment, and that the employee unreasonably failed to take advantage of the corrective or preventive opportunities provided, or to avoid harm otherwise.

Lower Courts

As is often the case with Supreme Court decisions, it has fallen on lower federal courts to flesh out the meaning of the Faragher/Ellerth standards, including what the court meant by the obligation of employers to prevent harassment.

The court in Faragher and Ellerth noted that proof that an employer has promulgated an anti-harassment policy with a complaint procedure might be relevant to the analysis of the first element of the affirmative defense. However, the court declined to hold that such proof was necessary in every instance.

An employer can meet its burden to show that it took reasonable steps to prevent harassment only if it also conducts training.

Since then, what is necessary to establish that an employer took appropriate steps to prevent harassment has been addressed on a case-by-case basis by lower courts. This has left employers with uncertainties. For example, is it enough to adopt equal employment opportunity and anti-harassment policies, place them in a handbook, and require employees to acknowledge receipt?

Initially, lower courts interpreting the Faragher/Ellerth affirmative defense found that employers could satisfy the obligation to prevent harassment by establishing written sexual harassment policies and notifying employees of the policies.

Courts did not require employers to post the policies in the workplace or provide anti-harassment training.

Impetus for Training

Although the issue is far from settled, recent lower court cases suggest that it is not enough for an employer to simply establish written anti-harassment policies. Rather, an employer can meet its burden to show that it took reasonable steps to prevent harassment only if it also conducts training and otherwise acts to actively engage employees with the policies.

In Winchester v. National Mutual Life Insurance Co., No. 3-09-CV-1225-M-BD (N.D. Tex. 2011), a federal district court denied summary judgment on a Title VII sexual harassment claim because the company's only evidence that it took steps to prevent the harassment was that it issued harassment prohibition policies and made them available on the company's intranet.

The court found that this was insufficient and strongly suggested that additional steps would be needed to avoid liability. The court stated that the employer "presented no evidence that it took specific actions to make its employees aware of its sexual harassment policy, reviewed the policies with its employees and supervisors, or trained its employees on the policies."

Policy Not Enough

Similarly, in Bishop v. Woodbury Clinical Laboratory Inc., No. 3:08-1032 (M.D. Tenn. 2010), a federal court denied summary judgment, finding that "in order for a defendant employer to satisfy the first prong of the Faragher/Ellerth affirmative defense, proof of the mere existence of an anti-harassment policy is not enough.

The court must look behind the face of the policy to determine whether the policy was effective in practice in reasonably preventing and correcting any harassing behavior."

The court determined that the employer had not satisfied its "prevent and correct" obligation, because there was no evidence that the plaintiff, or any other employee, received training regarding the company's anti-harassment policy.

In reaching its decision, the Bishop court cited the 6th U.S. Circuit Court of Appeals opinion in Clark v. United Parcel Serv. Inc., 400 F.3d 341 (2005).

In Clark, the court explained that "While there is no exact formula for what constitutes a 'reasonable' sexual harassment policy, an effective policy should at least: require supervisors to report incidents of sexual harassment; permit both informal and formal complaints of harassment to be made; provide a mechanism for bypassing a harassing supervisor when making a complaint; and provide for training regarding the policy."

Unnecessary Risk

While the legal requirements regarding the obligations of an employer to "prevent and correct" harassment are still evolving, it is likely that companies are taking unnecessary risk if their only action in this regard is adopting equal employment opportunity and anti-harassment policies.

Employers should train employees about the policies and take other proactive measures to educate them about permissible and prohibited conduct. Doing so can decrease the risk of potentially lengthy and expensive litigation.

Doing more than issuing a policy makes sense as a practical matter. "The workplace is no different than the most important things in life," says David L. Kaput, senior vice president and chief HR officer at ACCO Brands in Lincolnshire, Ill.

"It requires attention and proactive preventative and wellness care with open communication and engagement for excellent health," Kaput added.

Employers should engage in pro­active efforts to create a workplace free from harassment. These efforts should include establishing written anti-harassment policies that:

  • Make clear that harassment is strictly prohibited.
  • Define harassment broadly, including harassment based on sex, race, religion, national origin, age, disability and sexual orientation.
  • Provide a detailed description of the type of conduct prohibited.
  • Inform employees of the procedures for reporting harassment.
  • Identify whom employees should contact if they are subjected to harassment.
  • Permit reporting through a range of channels, including any manager, HR representative or anonymous phone service.
  • Permit both informal and formal complaints of harassment to be made.
  • Require employees to report any incident of harassment, even if it is not directed at them, and regardless of whether they think the employer is aware of it or another employee has reported it.
  • Provide that the employer will investigate and take appropriate preventive and corrective action.
  • Describe the disciplinary measures that the company may use in a harassment case.
  • Make clear that employees will not be subjected to retaliation for complaining about harassment.

Take proactive steps to ensure that employees are adequately informed of policies beyond simply requiring them to sign an acknowledgment.

Proactive Steps

In keeping with the increasing momentum of the law, employers need to do more than establish written anti-harassment policies. They need to take proactive steps to ensure that employees are adequately informed of policies beyond simply requiring them to sign an acknowledgment that they have read and understood them.

As indicated in Winchester and Bishop, employers should conduct periodic anti-harassment training of employees, supervisors and managers.

Employers should make sure employees know the HR representative to whom complaints should be directed. Those individuals designated to receive reports of harassment should be trained to respond in an appropriate manner and investigate complaints.

Finally, all reports should be investigated, even if the alleged acts do not seem like harassment.

By following these best practices, employers can establish a workplace where all employees feel safe and comfortable, while simultaneously shielding the company from potentially costly sexual harassment claims.

Andrew Slobodien is the founding member of Labor Lawyers Group PC in Chicago. Elizabeth Peters is an attorney with Edwards Wildman in Chicago.

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