- they exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and
- the complaining employee unreasonably failed to take advantage of any preventive or corrective opportunities.
You have also stressed that in cases where a tangible employment action is taken, employers are vicariously liable for sexual harassment committed by supervisors, and the affirmative defense is not available. Do these standards apply to cases of racial harassment as well?
Answer: Yes. Federal courts have determined that the Supreme Court standards set forth in Burlington Industries and Faragher do apply to cases of racial harassment. For example, the Sixth Circuit has held that the Michigan Department of Corrections could be vicariously liable for supervisors’ actions because the employer failed to take remedial action to stop racial harassment against a black corrections officer. The officer was subjected to derogatory racial insults by two of his supervisors. In addition he, unlike white officers, was constantly observed and followed by his supervisors, who monitored his work more closely than that of white officers. The court found that the officer did not have to prove that the employer "tolerated or condoned" the supervisors’ behavior; rather, the employer was subject vicarious liability for injuries caused by supervisors’ abuses of authority. The court added, however, that the employer might have an affirmative defense since the officer did not suffer a tangible job action.
What should you do? Employers should take all necessary steps to prevent and address all types of discriminatory harassment (harassment based on sex, race, national origin, skin color, religion, age, or disability) prohibited by federal, state and local law. These steps including developing and adopting a written policy prohibiting all types of discriminatory harassment. The policy should include a procedure for an employee to report harassment to management and to bypass a harassing supervisor when registering a complaint. Employers should also train managers and employees on the policy and how to raise and pursue their rights if harassed, monitor supervisors’ conduct, promptly investigate any complaints, and take appropriate action when needed, including disciplining the offender.
Cite: Allen v Michigan Department of Corrections (6thCir 1999) 75 EPD 45,732.
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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.