Supreme Court looks into the workplace

Sexual harassment continues to be an area of major concern and potential liability for counties, and three recent decisions by the Supreme Court may have an impact on how counties view potential sexual harassment claims. These decisions clarified issues on which many lower courts had been in disagreement. The rulings also provide guidance for a defense for certain sexual harassment lawsuits.

In Oncale v. Sundowner Offshore Services, Inc., the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits sexual harassment between members of the same sex, and that the legal standards governing same sex claims are the same as those applied to claims of sexual harassment by a member of the opposite sex.

In this case, the male employee alleged that he was forced to quit his job because of the intensity of the sexual harassment that included sex-related, humiliating harassment by two supervisors in front of other male employees.

The Supreme Court's decision reversed a ruling by the Fifth Circuit U.S. Court of Appeals which said that Title VII does not provide a remedy for a male employee claiming sexual harassment by male co-workers and supervisors. The high court cautioned that careful consideration should be given to the social context in which a particular behavior occurs and how its target perceives it. For example, a coach slapping a professional football player on the buttocks as the player ran onto the field would not be viewed as abusive behavior. However, if the coach did the same to a male or female secretary, it could be viewed as being abusive and sexually harassing.

In the second case, Burlington Industries v. Ellerth, the employee alleged that she was sexually harassed by her supervisor and threatened with loss of tangible job benefits if she didn't give in to his advances. Even though Ellerth refused her supervisor's advances, she suffered no tangible loss and, in fact, was later promoted. She did, however, quit her job after 15 months and filed suit against her employer for sexual harassment.

Ellerth was aware that the employer had a policy against sexual harassment, but she never told anyone in authority about her supervisor's actions. A question before the Supreme Court was whether an employee could sue for sexual harassment even if the employee's alleged harasser never carried out his threats of adverse action. In remanding the case to a lower court, the Supreme Court said that an employee could recover damages from the employer in this situation. In fact, the employee did not even have to prove that the employer was negligent or at fault for the supervisor's actions. The court did, however, point out a valid defense that an employer can use against such charges. The defense has two parts:

1. The employer must have exercised reasonable care to prevent and promptly correct any sexually harassing behavior that occurs; and
2. The employee must have unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

In the third case, Faragher v. Boca Raton, Fla., the Supreme Court ruled that an employer could be held liable for sexual harassment by a supervisor even if the employer was not aware of the harassment.

In this case, a lifeguard charged that two male supervisors had harassed her over a period of five years. Although it had a policy on sexual harassment, the city failed to include a system by which an employee could make a complaint through someone besides the employee's supervisor, nor did the city share the policy with employees in the Marine Safety Section. As a result, many employees did not know of the policy.

The Court, in its decision, said that the city did not exercise reasonable care to prevent harassing conduct by supervisors.

These decisions reinforce the importance for counties to develop an active program to reduce the potential for sexual harassment claims, to take control if a claim is made, and to have a defense if a lawsuit is filed.

(Please see the related article on establishing a sexual harassment prevention program.)