Sexual Harassment in the Workplace: Defeating an Employer’s Defenses
by
Joseph C. Maya on Feb. 21, 2024
Summary: A victim of sexual harassment in the workplace has certain available protections and remedies under Title VII of the Civil Rights Act of 1964, with respect to unwanted amorous advances, inappropriate touching, or an outright physical assault by another employee or co-worker. Essentially, a victim of sexual harassment must prove in a civil lawsuit that the harassment was “sufficiently severe or pervasive” to alter the conditions of her employment, and that there was a specific basis for imputing the resulting hostile work environment to her employer (and not merely to the harasser).
The Faragher/Ellerth Defense
Under what has become known as the Faragher/Ellerth defense, employers since 1998 have been permitted by the courts to put forth and establish an affirmative defense to victims’ lawsuits against inappropriately behaving employees, so long as they are able to prove one of two things: A) that the victim unreasonably failed to take advantage of a company’s established procedures and opportunities to prevent sexual harassment (such as policies, training, and complaint mechanisms through human resources), or B) that the victim employee complained about the conduct and the employer took prompt and appropriate corrective action (such as an investigation, discipline, and/or termination of the harasser).
If a defendant company succeeds in proving one of these two elements, that company may not be held liable for the sexual harassment of one of its employees, even under some egregious circumstances. Today, many companies have policies and procedures in place, and in most circumstances, a company can successfully claim that it would have been “unreasonable” for a victim not to complain about a harasser’s misconduct and to put the company on notice when something untoward occurs.
However, sometimes victims do not complain right away. In some cases, the harassment is committed by a supervisor – someone in a position of power over the victim, with a stranglehold on the victim’s voice, on her employment, on her will.
Supervisor-Subordinate Harassment
Our law makes adjustments accordingly. Therefore, where the harassment is committed not just by a co-worker of the victim, but by the victim’s work supervisor, the standard shifts dramatically – the employer company is “presumptively responsible” for the harasser’s conduct. In that instance, also, there is a proscribed limitation under which an employer can put forth the Faragher/Ellerth defense and potentially escape liability. Specifically, the test becomes whether the supervisor’s harassment (or unwanted sexual advance) culminated in what is known as a “tangible employment action” – such as a demotion, a denial of a promotion, a change in job responsibilities, or a termination of employment.
In other words, in cases of supervisor-subordinate harassment, a trial court applies a test to determine whether the tangible employment action is “linked” in some fashion to the supervisor’s discriminatory harassment. If indeed a connection is found – if a supervisor, for example, ultimately fires his victim of sexual harassment for fear she will disclose his reprehensible conduct to others – then the Faragher/Ellerth affirmative defense is not available to the employer company.
The purpose of this rule is to insure that, despite the procedures they might put in place to protect their employees from sexual harassment, companies may and often will be held liable and accountable for the actions of supervisors who harass their subordinates and then utilize their positions of power to remove their victims from the workplace.
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