Trailblazing decisions by the U.S. Supreme Court in
March and June of this year have significantly increased
the exposure of park and forest preserve districts and
other employers to liability for sexual harassment in the
workplace. As a result, governing boards and managers
must immediately take decisive action to prevent such
misconduct. |
the harassment is severe or pervasive and has the
purpose or effect of unreasonably interfering with an
individual's work performance or creating an intimidat-
ing, hostile or abusive working atmosphere. One issue that has confounded lower federal courts is the extent to which an employer is legally responsible for sexual harassment by supervisory personnel. The Supreme Court attempted to resolve this confusion in companion decisions announced on June 26, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. In Ellerth, the Supreme Court ruled that "[w]hen a plaintiff proves that a tangible employment action re- sulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself...is actionable under Title VII." An em- ployer therefore is automatically liable for quid pro quo sexual harassment by any supervisory personnel who have control over such terms and conditions of employment as firing, demotion, transfer and salary level, even if the employee did not complain about the harassment and the employer did not otherwise know about it. In both Famgher and Ellerth, the Supreme Court also held that an employer is liable for a supervisor's creation of a hostile work environment "where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it." In Famgher, the Supreme Court found that the city of Boca Raton was negligent as a matter of law in causing the sexual harassment of the plaintiff, a female lifeguard, because the city had failed to disseminate its policy against sexual harassment among beach employees, failed to keep |
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-
According to the Supreme Court, an employer's adop-
Finally, in Ellerth, the Supreme Court recognized that
Following the Faragher and Ellerth decisions, a park or
• Commissioners and senior administrative
• Middle- and lower-level supervisors. Liabil- |
tion, and work assignment," regardless of "whether or
• Non-supervisory co-workers. Although the Su- • Patrons, vendors and other non-employees.
Again, the Supreme Court has not addressed this is-
Prior to the current term of the Supreme Court, lower
Finally, the Supreme Court recognized that "harass-
As a result of the Oncale, Ellerth and Faragher deci-
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NEW RULES ON WORKPLACE SEXUAL HARASSMENT
1. Promptly adopt and distribute to all employees a comprehensive, written policy prohibiting sexual harassment. Any policy already in place should be carefully reviewed and revised to ensure that it specifically prohibits same-sex harassment, and includes reasonable procedures allowing an employee to report incidents of sexual harassment. Suggested items to include in such a policy are listed in the sidebar opposite. 2. VIGOROUSLY AND CONSISTENTLY ENFORCE THE POLICY. 3. Immediately and thoroughly investigate each and every report or complaint of sexual harassment in the workplace. 4. Discipline any employee, including a supervisor, who commits sexual harassment. 5. Provide mandatory training for all supervisors on how to handle a complaint of sexual harassment, and how to recognize and eliminate such conduct in the workplace. 6. Provide sensitivity training for all employees concerning sexual harassment. 7. Distribute the district's sexual harassment policy to all new employees, and re-issue it at least annually to all other employees. 8. Regularly review employee locker rooms, cafeterias, lounges and other gathering spots in the workplace, as well as employee bulletin boards and similar locations, for inappropriate behavior or materials, and take prompt corrective action if anything improper is discovered. Although some observers have welcomed the Oncale, Ellerth and Faragher decisions as clarifying the rules of conduct in the workplace, others are less sure. For example in his dissent to the Ellerth decision, Justice Clarence Thomas condemned the Supreme Court majority for "providing] shockingly little guidance about how employers can actually avoid vicarious liability" for sexual harassment by supervisory employees. "The Court's holding does guarantee one result," Justice Thomas wrote. "There will be more and more litigation to clarify applicable legal rules in an area in which both practitioners and the courts have long been begging for guidance." • JAMES D. WASCHER is an attorney with the law firm of Friedman & Holtz, P.C., which is general counsel to 1 5 park districts in the Chicago metropolitan area. |
Recommended Workplace Harassment Policy A park or forest preserve district's written policy prohibiting hassment in the workplace shorld include the following items. -Prohibition of sexual harassment, as well as harassment because of an employee's race, color, religion, national origin, ancestry, age, marital status, handicap, military status, unfavorable discharge from military service, or record of arrest. -A definition of sexual harassment and examples of prohibited conduct, which should include same-sex harassment. -Clarification that the disctrict's policy prohibits harassment in the workplace by commissioners, administrative and supervisory personnel, co-workers, pattrons and vendors. -Clear procedures for reporting sexual harassment. These procedures should provide the opportunity for an employee to report such misconduct to either male or female supervisors, and to bypass any supervisor who might be participating personally in the harassment. -Assuarance that the district will not retaliate against any person who reports or complains about prohibited harassment in the workplace, or cooperates in the investigation of such misconduct. -Assurance that the district will promptly investigate charges of prohibited workplace harassment, and a requirement that all employees must cooperate with the disctrict's investigation. -A requirement that supervisors seriously address any report or complaint concerning prohibited harassment in the workplace by ensuring that such complaints are promptly investigated and that appropriate action is taken to prevent any further harassment. -A declaration that the disctrict will take appropriate disciplinary action, up to and including termination, agaist any employee who is found to have committed sexual harassment or other prohibited harassment in the workplace, or who has made a false or frivolous complaint about such harassment.
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