In The News, Part Two By Toni Ahl
Last month we discussed some of the early cases that gave EEOC direction in its investigations. Through the years, there have been some cases that changed the way we looked at investigating sexual harassment. This month, I thought we would look at three of the cases that are considered to be very important in the development of sexual harassment cases.
In 1998, there were two landmark Supreme Court cases which provided additional clarification of employee/employer obligations related to sexual harassment. Burlington Industries v. Ellerth concluded there was no defense for an employer if sexual harassment is conducted by a Supervisor and results in a tangible employment action being taken against the employee. In Faragher v. City of Boca Raton, the Court determined the employer is liable for harassment unless it can prove it took reasonable care to prevent and promptly correct the harassing behavior and the employee failed unreasonably to take advantage of any preventive or corrective opportunities provided by the employer. These two cases gave direction regarding employer liability.
In Oncale v. Sundowner Offshore Services, same sex sexual harassment was the issue brought before the Supreme Court in 1998. The Court found that sex discrimination based on same-sex sexual harassment is actionable under Title VII. This case still held the same standard for proving sexual harassment. The victim of the harassment, under the theory of hostile work environment, must prove that the conduct was based on his/her sex and that the harassment was either severe or pervasive.
For quite some time, EEOC has been recommending to employers that they should be conducting sexual harassment training for management employees as well as non-management employees. But, even though many employers have provided training, the percentage of sexual harassment charges was still increasing. EEOC then convened a select task force to consider the issue. This task force was chaired by Commissioners Chai Feldblum and Victoria Lipnic. In June 2016, a report of the task force was presented to the full Commission.
If you were unaware of this report, I highly suggest that you review it. It is available on EEOC’s website, www.eeoc.gov. There are checklists for the following: Leadership and Accountability; an Anti-Harassment Policy; a Harassment Reporting System and Investigations; and Compliance Training. There is also a Chart of Risk Factors and Responsive Strategies. These resources were designed to assist employers in evaluating their companies and their policies and procedures. You may want to assess your risks and then take action in the areas where you may be most at risk.
I am available to assist you with your training needs. Training can be tailored to your business and particular needs. Training your employees to understand what is harassment and what is not is very helpful. Making sure that your supervisors and managers understand harassment is essential to limit your liability. I can do small or large group training to help you in achieving that understanding. I may be contacted at firstname.lastname@example.org or at (502) 553-7648.