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Supervisor Sexual Frolics and Company Liability for Harassment: Do the Two Go Hand in Hand?

Supervisor Sexual Frolics and Company Liability for Harassment: Do the Two Go Hand in Hand?

SML Perspectives
(December 05, 2013)

It hardly seems possible that more than two decades have passed since Anita Hill told America that Supreme Court nominee Clarence Thomas had made sexually explicit comments to her at work. An entire generation of employees has been born, educated and started work without realizing that "sexual harassment" is a relatively new legal concept. It has not been that long ago that holiday lunches included off-color gag gifts, birthday parties at the office meant the occasional exotic dancer, and the moniker "girl" was used without so much as a second thought.

Even before Hill, the Supreme Court had begun to change the legal landscape when it came to interaction between the sexes at work. In a landmark case involving a bank teller and her male supervisor, the Court breathed additional meaning into Title VII of the Civil Rights Act of 1964, the law that prohibits discrimination on the basis of gender, as well as on the basis of race, religion, national origin and color. Harassment, according to the Court, was just another way of pushing women aside and foreclosing "equal employment opportunity." And so began the era of policing the workforce for unprofessional sexual behavior.

Human behavior of this nature does not lend itself easily to legal definitions. At times it has seemed that almost any comment of a sexual nature from one employee to another was enough to land not only the employees but also their employer in court.

What is the stuff of normal group interaction involving mixed company? When does behavior cross the line and constitute workplace gender discrimination? Not surprisingly, there have been differences of opinion among judges and lawmakers over the decades. Those differences have played out in court decisions as the law has developed and matured. Fortunately, over time, the extreme ends of the definition of sexual harassment appear to have fallen away, and even though the concept still defies precise definition, a more common sense approach has emerged.

One thing that has not changed is the requirement that every employer with more than a few employees establish written ground rules for workplace behavior It's not enough to write the rules and stick them in a binder on a bookshelf, either. In fact, rarely in employment law does pretending to be an ostrich have the desired outcome. Instead, employers must announce the policy forbidding sexual harassment, publicize the punishment for violating that policy, and set out the mechanism for complaints. Once made, complaints must receive "hot potato" priority treatment, and employers' responses must be designed not only to remediate but also to prevent the misconduct from happening again.

But even with all these precautions in place, a business can still find itself on the receiving end of legal liability if an individual in whom it has entrusted responsibility to supervise others instead misuses that authority and misbehaves. Just who is a "supervisor" capable of causing such a result has been the subject of controversy.

In late June 2013, the Supreme Court visited the issue of sexual harassment again. This time it was to clarify that, absent negligence on an employer's part, an employer should only be held liable for the actions of a "wayward supervisor" if the supervisor had authority to wield sufficient power to hire, fire, demote, promote, transfer or discipline the victim. Certainly, the classic definition of "supervisor" would include the authority to do one or more of these things. But over the years this distinction had become less clear, and employers had been held liable for the sexual misconduct of employees with much less authority. In Vance v. Ball State University, the Supreme Court, in a 5-4 divided opinion (indicating just how controversial this subject still is), has returned the definition to its common sense roots.

The Vance v. Ball State University opinion is, without question, helpful to employers when it comes to determining liability for sexual harassment. However, it is not a "get out of jail free card." Employers should listen carefully to this message underlying the Court's opinion: with sexual harassment, there is little room for error. Supervisors with authority to take tangible employment actions must be beyond reproach in their dealings with subordinates. Stated another way, the Court's message repeats a fundamental truth for every business: choose your supervisors wisely and train them well. Often where they go, so goes the company.

This information should not be interpreted as legal advice with respect to specific situations.

Julianna Theall Earp
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