Sexual harassment has long been recognized as a form of gender discrimination arising under both Ohio’s anti-discrimination laws and Title VII of the Civil Rights Act. Generally, the elements that an employee must prove to prevail on a sexual harassment claim are as follows: (1) plaintiff is a member of a protected class; (2) the plaintiff is subject to unwelcome sexual harassment; (3) sexual harassment was based on the plaintiff ’s gender; (4) the sexual harassment created a hostile work environment; and (5) the employer should be held liable for the sexual harassment. See Williams v. General Motors, 187 F 3rd 553, 561 (Sixth Circuit 1999). This final element, the employer’s liability, varies depending on the circumstances presented by the harassment.
In circumstances where harassment was perpetrated by a co-worker, employer liability is only established if the plaintiff can demonstrate that (1) the employer knew or should have known of the alleged sexual harassment; and (2) the employer failed to implement prompt and appropriate corrective action upon learning of the harassment. Fleenor v. Hewitt Soap Co, 81 F 3rd 48, 50 (Sixth Circuit 1996). This means that the employer must have a procedure in place to fully investigate sexual harassment when it learns it is occurring. The investigation should occur promptly and should include interviews of the claimant, the alleged harasser and any witnesses that either party identifies. Once the investigation is complete, the employer should implement whatever corrective action or discipline is deemed appropriate. Moreover, this investigative process should be undertaken not just when someone complains, but also whenever harassment is witnessed by management. If a manager sees harassment, that knowledge will be imputed to the company and the duty to address the harassment will be triggered.
If the sexual harassment is perpetrated by a supervisor, the analysis is slightly different. If the sexual harassment culminates in a tangible employment action such as discharge, demotion or undesirable reassignment, the employer is going to be strictly liable. Burlington Industries v. Ellerth, 524 US 742 (1998). If, however, there has not been any tangible adverse employment action, an employer can raise a defense to employer liability if they can prove the following two elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) that the plaintiff -employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Faragher v. Boca Raton, 524 US 75 (1998).
The first element of this defense encompasses not only the duty to investigate and address harassment once it occurs, but also the duty to prevent it in the first place. This preventative element should include a comprehensive policy making it clear sexual harassment is unacceptable, describing what type of conduct is covered by the policy and how employees can report harassment when they witness it or are subjected to it. Employees should have various options on how to report harassment, including to their immediate supervisor, any management level employee and/or human resources. Periodic training on these issues is likewise recommended. The principle distinction between the scenarios involving a co-worker and a supervisor relates to the respective burdens of proof. With respect to the co-worker, it is the employee’s burden to demonstrate that the employer knew of the alleged harassment and failed to take appropriate remedial action. In contrast, in dealing with the supervisor, the employer is going to be liable for harassment, unless there was no tangible employment action, the employer can prove that it exercised reasonable care to prevent and correct promptly any sexual harassing behavior, and the employee failed to take advantage of the opportunities to report harassment that had been provided by the company. This distinction arises from the recognition that supervisory personnel have a heightened level of control over employees, and that the employer therefore has to take a more active role in assuring that its management level employees are not using that authority for improper purposes.
In order to protect itself from claims of sexual harassment, a company needs to think about its policies and procedures well before the harassment ever occurs. It also has to take the issue seriously. Training that treats the issue as a joke and is being done purely for show will not satisfy a company’s obligation to prevent sexual harassment. The steps a company takes to train its employees and put a policy in place may one day put it in a position to protect itself from a sexual harassment lawsuit. If the first time an employer thinks about these issues is when they receive a complaint for sexual harassment, it is likely going to be too late to protect itself from liability. Kirsten L. Clement