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Sexual Harassment Clarified

May 1, 1998
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With cases continuing to flood the courts, the Supreme Court has tightened the definition of sexual harassment. A recent ruling determined Title VII covered same-sex harassment, and a future case will decide just when an employer becomes liable for an employee’s actions. A. Michael Weber, managing partner for New York and New Jersey at employment law firm Littler Mendelson, explains what it all means for employers.

What are the basics for the same-sex ruling?
In Oncale v. Sundowner Offshore Services Inc., a male employee was working on an oil rig and was accosted both verbally and physically by his co-workers. Oncale’s complaint—made to supervisory personnel—was that co-workers called him names suggesting homosexuality and picked on him all the time. He brought action under Title VII for sexual discrimination and sexual harassment. The lower court said that’s not what the law had intended, that Title VII didn’t apply to same-sex sexual harassment; an appeals court said the same thing. However, the Supreme Court said Title VII was intended to be read expansively when it came to harassment based on someone’s sex—whether it’s male-on-male, male-on-female, female-on-female or female-on-male.

What did the ruling say?
The court tried as best it could to narrow the ruling. [Chief Justice Antonin] Scalia said male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But he said statutory protection often goes beyond the principal concerns of our legislators. Although the main thought was toward the traditional [issue] of a male supervisor [harassing] a female subordinate, the statute was written broadly enough, and the court interpreted it broadly enough, to protect against sexual harassment in the workplace based on an individual’s gender. But Scalia also said courts shouldn’t mistake ordinary socializing in the workplace, such as male-on-male horseplay, for sexual discrimination. So this creates somewhat of a problem for employers when each one of these cases is typically fact intensive—a case-by-case analysis of individual facts. There’s no bright-line test that employers will have other than to have a broad sexual-harassment policy prohibiting any harassment of any employee based on gender or race or anything else.

How does this change sexual-harassment laws?
This doesn’t change sexual-harassment laws other than to clarify that the law covers same-sex harassment.

Can you explain the upcoming case?
Faragher v. City of Boca Raton is a more significant and far-reaching case than the Oncale case. It goes to the issue of holding an employer liable for supervisory action or inaction. It’s an important case from an employer’s perspective. There are two plaintiffs in the case: Beth Ann Faragher and Nancy Ewanchew. Beth Ann and Nancy were lifeguards for the city of Boca Raton—only four or six of 40 or 50 lifeguards were female. During a certain time frame, two individual supervisors of the ocean lifeguards were alleged to have sexually harassed these two women lifeguards, using offensive language, offensive gestures, touching them on their arms and buttocks, and simulating sexual movement. Neither of the two individuals complained to the parks and recreation department management about the conduct. They didn’t complain to anybody in management. They both resigned. Before they resigned, they spoke to a superior of the [two harassing supervisors] in an unofficial capacity, not in a supervisory capacity but because this individual was held in high repute. This man never reported the complaint to his supervisor.

Then what happened?
The women resigned; the same year they wrote a letter complaining of the conduct. Based on that letter, the city reprimanded both men. Two years later, in 1992, the women both sued under Title VII. The issue presented to the Supreme Court is: Is an employer responsible for hostile-environment sexual-harassment committed by supervisory employees when the [harassment hasn’t been officially reported]? This has far-reaching effects. If an employer isn’t on notice either directly or indirectly of the conduct, and is held liable for supervisory action, the effect of this ruling will have significant impact on liability for companies.

How would you like to see this ruling go?
I think a correct ruling would be not to bind an employer without the knowledge of the harassment taking place. In my opinion it would be unreasonable to hold employers responsible for conduct they aren’t aware of. The Supreme Court this year will render several rulings to clear issues of sexual harassment in the workplace. It’s prepared to set down guidelines more so than it has in the past.

Why is that?
There are a number of cases in the pipeline surfacing; lower and appellate courts have seen a plethora of sexual-harassment claims. The area requires some clarification of what’s actionable and who’s liable.

In the meantime, what do you suggest to employers?
It’s essential that employers have specific sexual-harassment policies regarding what’s expected and what’s prohibited, and specific mechanisms to hear and resolve complaints—the individual to contact and what to do if that individual is involved in or can’t resolve the complaint. Policies should be broad enough to include any kind of harassment based on a person’s gender—and should be updated and written in a way to protect all employees. Train supervisors and employees on the new same-sex interpretations, and promptly investigate any allegation of sexual harassment by any employee.

Workforce, May 1998, Vol. 77, No. 5, pp. 105-108.


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