Minimizing Harassment in The Workplace

According to the U.S. Equal Employment Opportunity Commission (EEOC), harassment violates Title VII of the Civil Rights Act of 1964 because it comprises a form of discrimination. The original law states that it is unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin.”

Similarly, harassment is unwelcome conduct on the basis of race, color, religion, sex, national origin etc. Any verbal or physical conduct of an unwelcome nature, that affects an individual’s employment or creates an intimidating, hostile work environment, may constitute harassment. Harassment can take many forms e.g. offensive jokes or slurs, threats, physical assaults, and intimidation. The most common type of harassment in the workplace is sexual harassment. As a result, employers are more likely to be held liable for sexual harassment than other forms.

Employer Obligation

Employers have a legal obligation to prevent or report harassment in the workplace. An employer will be held liable if he/she knew in advance and failed to take preventative action or knew afterwards and failed to take punitive action. Employers are more likely to be liable when harassment is committed by superiors against inferiors, i.e. if a supervisor fires, demotes, or reduces the wages of an employee for no legitimate reason other than harassment. Employers can avoid liability by (a) exercising “ "reasonable care” to prevent or correct harassment as well as a “hostile work environment” (b) the victimized employee “unreasonably” failed to take advantage of any preventive or corrective opportunities.

3 Important Sexual Harassment Cases to Know

1. Burlington Industries, Inc. v. Ellerth: Victim claimed she was the emotional and mental victim of sexual harassment by her supervisor. Victim never reported the incident or experienced a professional setback. However, the U.S. Supreme Court ruled that workers can still bring sexual harassment cases against employers even if the harassment is not reported and the employee’s career is never hurt.

2. Faragher v. City of Boca Raton : Victim claimed supervisors created a “hostile work environment” and quit her job. The Supreme Court held that employers are vicariously liable for actionable discrimination caused by a supervisor unless the employer can demonstrate that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

3. Oncale v. Sundowner Offshore Services, Inc.: Victim (male) was sexually harassed by other male workers. Victim reported the incident but no action was taken. Victim quit on the basis of sexual harassment and filed suit. The Supreme Court ruled that sexual harassment applied to harassment in the workplace between members of the same sex.

Four Important Precedents

1. Employers are liable for sexual harassment of any type –whether between members of different gender, or the same.

2. Employers are liable if the harasser is in a relatively higher position than the harassed, and the victim suffers a professional setback – even if employers did not know, or had no way of knowing, that harassment was occurring.

3. Employers are not liable if the harasser is in a relatively higher position than the harassed, the victim does not suffer a professional setback – and if “reasonable care” was taken to prevent the harassment.

4. Employers are not liable if the harasser is in a relatively lower position than the harassed – and if “reasonable care” was taken to prevent the harassment.

Two Key Ways to Minimize Liability

1. Employers are more likely to be held liable if harassment is committed by a superior towards an inferior, and adverse job action is taken against the victim, i.e. a professional setback. Employers can minimize liability by carefully overseeing or authorizing only trustworthy individuals with the power to fire, demote, or reduce employee wages. Moreover, employers should review every adverse job action before going into effect.

2. Employers are less likely to be held liable if they take preventative measures: by taking “reasonable care” in preventing harassment or inducing a “hostile work environment.” Employers can demonstrate “reasonable care” by formulating a clear and written anti-harassment policy, educating employees, implementing a compliant procedure, investigating complaints thoroughly, and taking action against the guilty. Employers can show that they took steps to prevent a “hostile work environment” by reducing hostility among employees. For instance, employers can post office courtesy signs throughout the workplace to remind employees to respect one another. It’s difficult, if not impossible for employers to be able to watch out for workplace harassment all the time: office courtesy signs serve as a constant reminder while employers can focus on other tasks.