Recent Supreme Court decisions have altered an employer's liability for the misconduct of its supervisors in significant ways. This article describes The University of Iowa's responsibility for sexual harassment by supervisors. The Office of Equal Opportunity and Diversity recommends that all supervisors read this article and participate in sexual harassment prevention training.

In 1998, the United States Supreme Court issued decisions in Faragher v. City of Boca Raton and Burlington Industries v. Ellerth clarifying an employer's liability for the conduct of supervisors.

In Faragher the plaintiff was a female lifeguard who worked for the City of Boca Raton. Her immediate supervisor and the next higher supervisor, both male, created a sexually hostile environment for female lifeguards by making inappropriate comments and by touching them. The plaintiff did not formally report this conduct to higher management. The plaintiff's tangible job benefits (pay, promotion, time off, etc.) were not affected.

In Ellerth the plaintiff was a salesperson for the defendant company. Her direct supervisor made repeated inappropriate comments and gestures, which created a hostile environment. The plaintiff did not report the conduct to higher management. Her tangible job benefits were not affected.

An employer can be held liable for supervisor misconduct when the supervisor abuses his or her authority.

In these two cases, the Court ruled that an employer may be liable for the misconduct of a supervisor which is made possible by the abuse of his or her authority. When a tangible job benefit of the employee is affected as a result of the supervisor's harassment, the employer will be held strictly liable, regardless of whether any higher management authority was aware of the harassment or whether the employee reported the harassment. This is so because the supervisor's action in affecting the tangible job benefit is deemed to be the act of the employer.

When a tangible job benefit is not affected the employer will be held liable for the supervisor's harassment unless the employer can prove the following two-prong affirmative defense:

1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and

2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

The employer must prove both prongs of the affirmative defense by a preponderance of the evidence.

An employer must exercise reasonable care to prevent and correct promptly any harassing behavior to have a defense.

A key element in the first prong is whether the employer has established, disseminated, and enforced an anti-harassment policy and complaint procedure. An adequate policy and complaint procedure will help establish that the employer made reasonable efforts to prevent harassment. However, a policy alone is not sufficient if it is not enforced. An employer's response to complaints of harassment will determine whether the employer acted reasonably to promptly correct any harassment behavior. The employer must respond by promptly, thoroughly and impartially investigating any allegations of harassment. In some situations it may be necessary to implement interim measures while the investigation is proceeding to ensure that further harassment and/or retaliation does not occur. In addition, action taken in response to prior complaints about the same individual is relevant to determine whether the employer took reasonable action to prevent harassment from recurring. Furthermore, an employer has a responsibility to correct harassment regardless of whether an employee files a complaint. When a supervisor becomes aware of conduct in the workplace that is unwelcome, the supervisor should intervene to stop the conduct and ensure it does not recur even if no employee has complained.

An employee's unreasonable failure to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise provides a defense.

This prong of the affirmative defense is based on the theory that a victim has a duty to use reasonable means to avoid or minimize his or her damages. Generally, this prong of the defense would be satisfied if the employer had an effectively communicated complaint procedure and the victim did not utilize it, or if the victim did make a complaint but then refused to cooperate in the investigation. However, the employer still bears the burden of proving that the employee's failure was unreasonable. If the employee had a justifiable fear of retaliation, his or her failure to utilize the complaint process may not be unreasonable.

In the Faragher case, the City of Boca Raton was held liable for the supervisors' conduct. Since there was no tangible job action, the City would have the opportunity to present the affirmative defense, but the Court found as a matter of law that the City had not exercised reasonable care to prevent harassment because the City had not published its policy to the employees involved and made no attempt to oversee the supervisors' conduct. The Ellerth case was remanded to the lower court to allow the defendant the opportunity to prove the affirmative defense.

These cases underscore the importance of the actions of University of Iowa supervisors, both in terms of their own conduct in dealing with their subordinates as well as their response to incidents of sexual harassment in the workplace. The actions of a supervisor in many ways are deemed to be the actions of the University. The Office of Equal Opportunity and Diversity offers training programs for supervisors every month regarding their role and responsibility in implementing the University's Policy on Sexual Harassment. All supervisors are strongly encouraged to attend one of these sessions. Please contact Staff Development to enroll.

The Court's analysis in the Faragher and Ellerth decisions addressed sexual harassment by supervisors. However, the same analysis applies to harassment by supervisors based on any other protected status including race, color, sex, religion, national origin, age, disability, or protected activity. In addition, the University would apply the same analysis to complaints based on any protected status defined by the University's Policy on Human Rights, which includes those listed above as well as sexual orientation and gender identity.

For further information about sexual harassment, please see the Equal Employment Opportunity Commission's Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors. http://www.lawmemo.com/emp/eeoc/harassment.htm

The University of Iowa prohibits discrimination in employment and in educational programs and activities on the basis of race, national origin, color, creed, religion, sex, age, disability, veteran status, sexual orientation, gender identity, or associational preference. The University also affirms its commitment to providing equal opportunities and equal access to University facilities. For additional information on nondiscrimination policies, contact the Coordinator of Title IX, Section 504, and the ADA in the Office of Equal Opportunity and Diversity, (319) 335-0705 (voice) and (319) 335-0697 (text), 202 Jessup Hall, The University of Iowa, Iowa City, Iowa 52242-1316.