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A #metoo Primer: Sexual Harassment & Employer Liability

By: Patricia Hall, phall@heylroyster.com

Since October of 2017, the two-word hashtag “#metoo” spread like wildfire over social media in an effort to denounce sexual harassment in the wake of the allegations against film producer and executive Harvey Weinstein. As one high profile figure after another is accused of sexual harassment in the workplace, we are reminded of the importance of maintaining policies and procedures that prevent sexual harassment in the workplace.  In the event sexual harassment occurs, it is important to take appropriate action to remedy the behavior and prevent future harassment.

Sexual Harassment Defined

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). An Illinois employer may also be held liable for the harassing behavior of their employees under the Illinois Human Rights Act if the employer “becomes aware of the conduct and fails to take reasonable corrective measures.” 775 ILCS 5/2-102(D).

Under EEOC Guidelines, sexually motivated and suggestive conduct in the workplace constituted employment discrimination under Title VII, for which an employer may be held liable for the actions of its employees. The EEOC Guidelines describe sexual harassment as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicity or implicitly a term or condition of an individual’s employment, (2) submission to or rejecting of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance by creating and intimidating, hostile, or offensive working environment.

29 C.F.R. § 1604.11(a). These Guidelines are considered and applied throughout case law, providing a framework for preventing and addressing sexual harassment in the workplace.

The best case scenario for any employment environment is to prevent workplace harassment altogether, resulting in a comfortable environment for all while also avoiding liability. Proper hiring practices, supervisor training, and employee education will go a long way in achieving this goal. In the event that preventive measures fail, however, it is necessary to maintain proper procedures for addressing circumstances in which sexual harassment is alleged or witnessed.

Employer Liability

The Supreme Court has recognized two types of harassment for which employers may be held liable under Title VII: sexual harassment involving a tangible job action, or quid pro quo, and hostile work environment. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Under Title VII quid pro quo claims, an employer can be held strictly liable for the harassment by a supervisor. An employer can be held strictly liable if the complaining employee proves:

1) membership in a protected class;

2) he or she was subject to unwelcome sexual harassment;

3) the harassment complained of was based upon sex;

4) a legal basis exists for employer liability; and

5) the harassment complained of affected tangible aspects of the employee’s compensation, terms, conditions, or privileges of employment.

Title VII does not define “supervisor,” but courts have defined a supervisor as someone empowered by the employer to take “tangible employment actions” against the victim. Ellerth, 524 U.S. at 761. For strict liability to attach to the employer the supervisor must have leveraged his or her position and taken tangible employment action against the employee.

Hostile work environment claims involve employer liability for the harassment of any of its employees if the complainant proves:

1) membership in a protected class;

2) he or she was subject to unwelcome sexual harassment;

3) the harassment was based upon sex;

4) a basis for employer liability; and

5) the harassment was so severe and pervasive as to adversely alter the conditions of the victim’s employment and create an abusive working environment.

See 29 C.F.R. 1604.11(a). Employer liability under these circumstances turns on notice and failure to act.

Recent decisions from the United States Seventh Circuit Court of Appeals remind employers of potential liability relating to sexual harassment allegations in the workplace and how such allegations should be addressed.

Harassment by a Supervisor

Earlier this year, the United States Court of Appeals for the Seventh Circuit ruled on a case relating to an employer’s liability for the intentional torts of its supervisors. In Anicich v. Home Depot U.S.A., Inc., 852 F.3d 643, 656 (7th Circ. 2017), the Seventh Circuit held that a victim can bring a tort claim against an employer for negligent hiring, supervision, or retention of a harassing supervisor.

The employer in this case, Home Depot, was accused of failing to act after receiving notice of harassment committed by one of its male supervisors, which resulted in the death of a female employee. Anicich, 852 F.3d at 646. The supervisor’s treatment of the employee began with sexual advances and escalated over time. Id. He started by making inappropriate comments and calling the employee names in front of customers. The behavior escalated to “verbally abusing her while throwing things, controlling and monitoring her both during and outside her work hours, and requiring her to come with him on business trips.” Id. After five years of this harassment, the supervisor used threats of tangible employment action by threatening to fire the employee or cut her hours if she would not accompany him on a personal trip to a family wedding out of state. It was during that trip that the supervisor killed and raped the employee. Id.

The family of the deceased employee brought an action against Home Depot for failing to remedy the supervisor’s behavior and accused Home Depot of negligence. Id. The Northern District of Illinois dismissed the complaint, opining that a negligent hiring, supervision, or retention claim cannot be sustained against an employer for the intentional torts of its supervisors if they occur off of the premises. The employee’s estate appealed. Id. at 656. The Seventh Circuit revsered and held that an employer can be held liable for the intentional torts of its supervisors if the supervisor leverages his position in commission of that tort, even if that tort occurs off of the employer’s premises. Id.

In its analysis, the Seventh Circuit held that an employer has an obligation to “prevent and promptly correct harassment.” Id. at 650. The obligation to act on allegations of harassment can be satisfied with proper investigation and subsequent appropriate remedies. Id. Appropriate remedies involve discipline of the harassing employee up to, and including, termination. In our example case, the complainant alleges that Home Depot was aware of the supervisor’s history of sexually harassing his young female subordinates. Id. at 647. The female employee repeatedly complained to senior management about her supervisor’s behavior. Id. She advised another manager that she did not want to be left alone with her supervisor, and another manager sent the supervisor home on one occasion for calling the employee sexually inappropriate names in front of customers. Id. The employer instructed the harassing supervisor to take anger management classes, but did not follow up to ensure the classes were completed. Id.

Here, there was no need for an investigation because several people witnessed and reported the harassment. The key component at issue is the employer’s inaction. The Seventh Circuit emphasized that the employer’s lack of follow-up regarding discipline, as well as the fact that the harassing supervisor continued to supervise the female employee, despite the other managers’ admission to having knowledge of the harassment. Id. at 648.

Notice of Harassment

In another Seventh Circuit case, the Court found employer liability based on “constructive notice” of sexual harassment by one of its employees. Nischan v. Stratosphere Quality, LLC, 865 F. 3d 922, 931 (7th Circ. 2017). An employer is responsible for sexual harassment of its employees if the employer becomes aware of the conduct and fails to take reasonable corrective measures. Nischan, 865 F.3d at 931. This is true if the allegations were reported by someone other than the victim, or if the harassment is not reported, but is “sufficiently obvious.” Id. at 932. Constructive notice occurs when the notice comes “to the attention of someone who…has under the terms of his employment…a duty to pass on the information to someone within the company who has the power to do something about it.” Id.

In Nischan v. Stratosphere, the Northern District of Illinois dismissed a negligence complaint against an employer, finding that the employee failed to provide a basis for employer liability. In that case, a female employee alleged that another employee approached her in a work trailer and sexually harassed her while other employees witnessed the account. One of the witnesses was a project manager, who reported what happened as required by the employee handbook. Id. at 932. The Seventh Circuit found that there was sufficient constructive notice and remanded the case to the District Court for further proceedings. The Seventh Circuit noted that an employer is held to its own standards regarding reporting procedures, and therefore, the employer was on notice as soon as one manager reported the harassment. Id.

Conclusion

In summary, sexual harassment prevention begins with proper policy implementation, but also requires follow-through. The Seventh Circuit indicated the importance of training on harassment policies and reporting procedures, documentation, investigation, and acting on allegations. It is not enough to simply acknowledge harassment. The court has clearly advised that an employer must act in a reasonable way. Each circumstance will be evaluated for reasonableness, but Anicich reminds employers that it is not enough to assign blame and hope that the harassing employee changes his or her behavior. An employer must take a substantial step in ensuring consequences are properly applied, and the behavior does not continue. Furthermore, the Nischan case reminds employers that once harassment is reported, the employer must act immediately.

For complimentary in-house sexual harassment training or any other questions, please contact the attorneys in the Employment & Labor Practice Group at Heyl Royster.