As we discussed in Part 1 of this series, Title VII of the Civil Rights Act prohibits sexual harassment, among many other types of discrimination and harassment (on the basis of race, color, sex, religion and national origin). In the prior post, we explored the basics of sexual harassment law, and in this one, we will explore how it is an employer liability.
U.S. Supreme Court guidance
At the close of the last century, the U.S. Supreme Court made it clear that employers are held responsible for the illegal sexual harassment of the supervisors they employ. This means that if a supervisor takes a negative tangible employment action, like not hiring, firing, not promoting or demoting someone based on their sex, it is illegal, and the employer has liability for those actions. In addition, if that same supervisor sexually harasses an employee or potential employee to the point it creates a hostile work environment, the employer is also liable.
How is liability established?
If a negative tangible employment action occurred, the employer is liable, period. If not, then, to avoid liability, the employer must prove two things. First, it must prove that they exercised reasonable care to prevent the supervisor’s actions, and then, when it learned of the illegal conduct, it promptly stopped the harassment. Second, the victim employee did not complain to management and that not complaining was not reasonable under the circumstances. Of course, neither is easy to prove.
How does an employee qualify as a supervisor to establish liability?
Any employee can qualify as a supervisor, even if they do not have such a title. They simply need to have the authority to “recommend” a tangible employment decision that could affect the victim employee. A tangible employment decision is any significant change in employment or status, including reassignments, demotions and promotions, firings, hiring and any decision that significantly changes work, benefits or compensation.
What are my responsibilities?
You have to take reasonable steps to avoid the harassment. This means you filed a complaint, informed management or followed your employer’s complaint procedure. If you fail to report the activities, you may lose the ability to hold your employer liable. Though, if you had a legitimate fear of retaliation, you may still hold them accountable.
Do I have to wait?
Sometimes, employers will drag out their investigations to hurt your ability to file a complaint with the EEOC. Keep in mind that, usually, you only have 180 days form the date of the last harassment to file your EEOC complaint. If your employer is taking too long, and you are getting close to this deadline, filing an EEOC complaint is imperative. And, of course, you can always contact an Oakland, California, attorney.