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Do You Know Who Your 'Supervisors' Are?

By Lawrence Peikes and Lori Rittman Clark

Historically, the federal courts have been far from uniform in their views regarding the circumstances under which employers may be held liable for sexually harassing conduct committed by their supervisory personnel. In June of 1998, however, the United States Supreme Court issued two decisions, Faragher v. City of Boca Raton, 524 U.S. 775 and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, in which the Court clarified the standard to be employed in determining employer liability for a sexually hostile work environment created by a supervisor. In Faragher and Ellerth, the Supreme Court ruled that employers are strictly liable for acts of sexual harassment perpetrated by their supervisory-level employees that are so egregious as to violate Title VII. Notably, the Court left open the definition of “supervisor.”

The Supreme Court also recognized an affirmative defense in the Faragher and Ellerth cases, which is available where an employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior and where the complaining employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer, or to avoid harm otherwise. Thus, an employer who successfully asserts the Faragher-Ellerth affirmative defense may be able to avoid liability for the sexually harassing conduct of its supervisors. Both elements of the defense must be satisfied for the employer to avoid liability. The defense is not available, however, where the complaining employee alleges that he or she suffered a “tangible employment action,” such as a termination, reduction in pay or demotion, as a consequence of the alleged sexual harassment.

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