The Supreme Court’s Burlington Industries vs. Ellerth ruling took away the “see no evil” defense to charges of sexual harassment. The National Organization for Women has consistently said employers have an ethical responsibility to protect their employees from harassment, sexual or otherwise. Finally the Supreme Court has confirmed they have a legal responsibility as well.
The court ruled that any supervisor is an agent of the employer, regardless of job descriptions or official duties, meaning that the employer can be found liable for harassment by supervisors, whether the employer knew about it or not. This is an important clarification of sexual harassment law.
Message to corporate America: The best defense against liability is a good offense. This should include management training; effective, well-publicized sexual harassment policy; prompt and appropriate discipline for violators; protection against retaliation; and, most important, equal opportunity for women.
To successfully defend against liability, an employer must prove that it has taken “reasonable” steps against sexual harassment and the plaintiff “unreasonably” failed to take advantage of the company’s sexual harassment policy or to “avoid harm otherwise.” What is reasonable and unreasonable will still be in the hands of the courts–a point to consider while we celebrate this ruling.
Some say the Supreme Court’s Burlington Industries vs. Ellerth ruling will fuel a boom in the consulting business. So be it. Just as the ruling increased a company’s liability, it also provides a clear framework for mounting a defense. This high court’s ruling should not instill fear in the hearts of CEOs. The message is clear and the court has set standards. Companies must demonstrate proven and effective policies for dealing with sexual harassment. Employees must take action when they are being harassed.
