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Harassment Cases Continue to Thrive
In 1998, the United States Supreme Court decided Burlington Industries, Inc. v. Ellerth, 524 U.S. 74 (1998), and Faragher v. City of Boca Raton , 524 U.S. 775 (1998), both of which addressed the scope of employer liability in sexual harassment cases. The Court held that an employer may be vicariously liable to an employee whose immediate supervisor subjected him/her to a hostile work environment and imposed a “tangible employment action” upon him/her. A “tangible employment action” is a change in an employee’s terms and conditions of employment that typically, though not necessarily, results in economic harm to the employee such as: job termination, demotion and denial of promotion. In the absence of a tangible employment action, an employer may attempt to shield itself from liability by introducing evidence that it attempted to prevent sexual harassment, and had an effective and publicized complaint procedure, but that the victimized employee unreasonably failed to utilize that procedure. Consequently, many cases being decided by the federal courts now focus on whether the alleged harassment victim suffered a “tangible employment action” and the effectiveness of employers’ complaint procedures.