New Rules on Workplace Sexual Harassment

FEATURE ARTICLE

As one observer has written, "the justices told the nation's employers they must rid their ranks of abusive supervisors."

track of the conduct of the supervisors who committed the harassment, and failed to assure that these supervi- sors could be bypassed in registering complaints about sexual harassment. Other evidence of negligence by an employer would include ignoring or downplaying com- plaints of sexual harassment, as opposed to firmly disci- plining any supervisor who commits such misconduct. In other words, as one observer has written, "the justices told the nation's employers they must rid their ranks of abusive supervisors." The Supreme Court declared that an employer can de- fend itself against "vicarious liability" for hostile work environment harassment (but not quid pro quo harass- ment) by proving "two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advan- tage of any preventive or corrective opportunities pro- vided by the employer or to avoid harm otherwise." According to the Supreme Court, an employer's adop- tion of "an anti-harassment policy with complaint proce- dure...,suitable to the employment circumstances," would help to demonstrate that the employer exercised reason- able care to prevent hostile work environment harassment. Conversely, an employee's "unreasonable failure to use any complaint procedure provided by the em- ployer... normally will suffice" to establish that the em- ployee did not take advantage of the preventive or correc- tive procedures that were available. These defenses are not available, however, in cases of quid pro quo harass- ment by supervisors because they are treated by the courts "as the organizations proxy," or as "acting with the au- thority" of the employer. Finally, in Ellerth, the Supreme Court recognized that a supervisor's threat to take adverse employment action against a subordinate who refuses to submit to the supervisor's sexual demands may either create, or con- tribute to the creation of, a hostile work environment, even if the supervisor does not carry out his or her threat. Following the Faragher and Ellerth decisions, a park or forest preserve district can be held liable for sexual ha- rassment by the following list of persons. • Commissioners and senior administrative employees, such as the director. Liability is automatic, regardless of whether the sexual harassment is quid pro quo or hostile work environment and re- gardless of whether the district has a policy prohibiting sexual harassment, because the wrongdoer "hold[s] a sufficiently high position 'in the management hierar- chy'" that his or her conduct is "considered the act of the employer." • Middle- and lower-level supervisors. Liabil- ity again is automatic for quid pro quo harassment or any other "discriminatory employment actions with tan- gible results, like hiring, firing, promotion, compensa-

tion, and work assignment," regardless of "whether or not the employer knew, should have known, or ap- proved of the supervisors actions." However, a negli- gence standard applies to liability for hostile environ- ment sexual harassment by a supervisor. • Non-supervisory co-workers. Although the Su- preme Court has yet to directly address this issue, lower federal courts, including the Court of Appeals for the three-state region that includes Illinois, unanimously have ruled that an employer can be held liable for sexual harassment by co-workers only if the employer knew or reasonably should have known about the harass- ment, and failed to take appropriate steps to stop it. • Patrons, vendors and other non-employees. Again, the Supreme Court has not addressed this is- sue, but lower courts agree that an employer is liable for a hostile work environment created by patrons, vendors and others only if the employer knew or should have known about the conduct, and failed to take prompt corrective action. Prior to the current term of the Supreme Court, lower federal courts also had been divided as to whether Tide VII prohibits same-sex harassment and, if so, whether the prohibition applies only if the harasser is gay. On March 4, the Supreme Court resolved both questions against the employer in the case of Oncale v. Sundowner Offshore Services, Incorporated. erson charged with acting on behalf of the defendant) are of the same sex." The court further stated that such claims "must extend to sexual harass- ment of any kind that meets the statutory requirements," without regard for the gender of the harasser or the vic- tim. Finally, the Supreme Court recognized that "harass- ing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex," and therefore may support a claim under Title VII regardless of the harassers sexual orientation. Thus, for example, "if a female victim is harassed in such sex-spe- cific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace," or if a male victim is harassed by other men for wearing an earring or a ponytail, or for other behavior that they deem in- sufficiently "masculine," the victim probably would have a claim for sexual harassment. As a result of the Oncale, Ellerth and Faragher deci- sions, park and forest preserve districts should take the eight steps listed on page 18 in order to prevent sexual harassment in the workplace and reduce the possibility of legal liability for such misconduct.

18 Illinois Parks and Recreation

NEW RULES ON WORKPLACE SEXUAL HARASSMENT