• Davis and Gras, LLC

Is My Employer Responsible For My Supervisor's Sexual Harassment?

First determine what type of sexual harassment has occurred.

When determining if an employer may be liable for the sexual harassment of its supervisors, the first step is to determine what type of harassment has been committed.

When the supervisor's harassment culminates in a “tangible employment action” being taken against the employee (i.e. demotion, termination or other adverse action), the employer has no defenses available and will be automatically held liable.

However, if sexual harassment by the supervisor does not result in demotion, termination or other adverse action, it may still be sufficiently severe and pervasive to be considered a hostile work environment. Your employer’s responsibilities in this second instance are discussed below.

For more information on the different types of Sexual Harassment, see our blog post here.

Can my employer avoid liability for a hostile work environment?

Your employer will be found responsible for the hostile work environment, unless it can show that:

  • It exercised reasonable care to prevent and correct promptly any harassing behavior; and

  • You unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm.

This analysis for imposing vicarious liability for supervisory sexual harassment has been applied to other forms of unlawful harassment. In fact, the Supreme Court has drawn upon race and national origin cases in developing the analysis for sexual harassment cases.

What if my employer doesn’t have an anti-harassment policy?

A policy and complaint procedure is not required to prove the employer exercised reasonable care. However, in Faragher v. City of Boca Raton, the Supreme Court held that the existence of such procedures was highly relevant and even may be essential if the employer has multiple locations. Additionally, the Court indicated that the size of the employer's workforce may make a difference in the formality of the procedures required.

The Equal Employment Opportunity Commission (EEOC) has also taken into account the size of the employer in determining the nature of the policy and complaint procedure. It generally is necessary for employers to establish, publicize, and enforce anti-harassment policies in complaint procedures.

The Supreme Court has noted that although this “is not necessary in every instance as a matter of law,” failure to do so will make it difficult for an employer to prove that it exercised reasonable care to prevent and correct harassment.

Is my employer required to investigate complaints of sexual harassment?

The Eighth Circuit has indicated that to prove that the employer exercised reasonable care to prevent and promptly correct any harassing behavior; the employer must show that it conducted a “thorough investigation” and took “appropriate action” promised by its sexual harassment policy.

What is my employer required to do in response to sexual harassment?

Factors to be considered in assessing the reasonableness of an employer's remedial measures include:

  • The amount of time elapsed between the notice of harassment and the remedial action;

  • The options available to the employer such as employee training sessions, disciplinary action taken against the harasser(s), reprimands in personnel files, and terminations; and

  • Whether or not the measures ended the harassment.

What am I required to do if I have been sexually harassed?

Your employer will not be held liable for the hostile work environment if you unreasonably fail to take advantage of preventative or corrective opportunities provided by the employer or to otherwise avoid harm. That means if your company has procedures in place to report harassment, you need to make sure that you follow them. However, your employer will only escape liability if your failure to utilize the procedures in place was unreasonable.

No defense is available for your employer, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Contact Davis & Gras, LLC

If you have experienced sexual harassment in the workplace contact our experienced attorneys at 314-888-5858.

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