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Employment Law StrategistLJN NewslettersNewsSections

Claims of Harassment

By Ralph A. Morris and Dorothy A. Paler
November 27, 2007

Recent court decisions highlight the importance of continuing to be vigilant in monitoring and preventing harassment in the workplace. For example, most employers and labor and employment lawyers are aware that harassing conduct by supervisors will result in strict liability being attached to the employer. It appears clear, however, that courts are increasingly willing to impose strict liability for harassing conduct carried out not only by the highest supervisors, but by lower-level managers as well. In addition, recent court decisions highlight the importance of employers training their employees to report not just employee-on-employee harassment, but harassment by non-employees of employees. Employers of teenagers, and their counsel, should especially be aware of the need to train and protect underage employees appropriately to prevent harassing behavior. Recently published decisions prove that courts are increasingly critical of employers who ignore harassing behavior against what is seen to be a vulnerable group of employees. Finally, employers should be aware that harassment that is not overtly sex- or gender-specific in content may still be discriminatory harassment, if it disproportionately affects a gender group (e.g., women).

How to Define 'Supervisor'

The definition of 'supervisor' under Title VII continues to be of growing concern for employers. As most employers will recall, according to the Supreme Court's decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), an employer will be vicariously, or strictly, liable when a supervisor with immediate authority over an employee engages in harassing conduct. In contrast, if an alleged harasser is merely a coworker, the employer will only be liable if it failed to have and enforce a reasonable policy for preventing harassment, or if it was negligent in protecting employees from harassing coworkers. (See 'Sexual Harassment 'Victims' Must Satisfy Their 'Half' of the 'Reasonableness' Equation or Suffer the Consequences Later,' by Debra M. Leder, The Employment Law Strategist, July 2007; www.lawjournalnewsletters.com/issues/ljn_emplaw/15_3/news/148929-1.html.)

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