EEOC Issues Guidance as a Result of Supreme Court Cases:  Ellerth and Faragher

The EEOC in an Enforcement Guidance has taken the position that employers can be liable not only for a supervisor's sexual harassment of an employee but also for a broad range of other types of harassment by a supervisor.

In two 1998 landmark cases, the United States Supreme Court established that an employer may be subject to vicarious liability for a supervisor's acts of sexual harassment.  The two cases were Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton.  Ellerth and Faragher provide for strict liability against employers where a supervisor's sexual harassment results in a tangible employment action.  Traditional types of tangible employment action include supervisor actions such as hiring, firing, promoting and demoting.  Ellerth and Faragher, however, carve out an affirmative defense for employers where a supervisor's sexual harassment results in no tangible employment action.  To assert this defense, an employer must prove that it exercised reasonable care to prevent and promptly correct any harassing behavior and that the employee unreasonably failed to utilize an employer's policies and procedures for addressing sexual harassment in the workplace.

As a result of the Supreme Court's rulings, the EEOC recently issued an Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (Guidance).  The Guidance substantially expands the scope of Ellerth and Faragher beyond sexual harassment and imposes vicarious liability on an employer for all types of supervisor harassment.  The EEOC takes the position that an employer may now be liable for supervisor harassment "based on sex, race, color, religion, national origin, age, disability, or protected activity."  The EEOC justifies its position in the Guidance by noting that the Supreme Court supported its reasoning in Ellerth and Faragher with case law involving various types of harassment, not just sexual harassment.  The Guidance also states that the EEOC "has always taken the position that the same basic standards apply to all types of harassment."

In light of the Guidance, an employer should review its policies and procedures to ensure compliance wtih EEOC requirements.  For a detailed discussion of EEOC requirements for sexual harassment, see a previous article from Cleveland, Waters and Bass entitled "Adopted a 'Zero Tolerance Policy' and aAvoiding Liability" available at www.cwbpa.com.  Any existing policies and procedures regarding a supervisor's sexual harassment should be expanded to include all types of harassment.  Effective policies and procedures will not shield an employer from liability for a supervisor's harassment that results in a tangible employment action, but such policies and procedures may provide a defense to the employer for harassment by a  supervisor where there is no tangible employment action.  The Guidance, however, weakens this affirmative defense, by stating that proof of an employee's failure to use the employer's complaint process "will not establish the defense if the employee made other efforts to avoid harm."  As an example, the Guidance provides that a prompt complaint to the EEOC could defeat the employer's defense.

The Guidance also extends the definition of tangible employment action beyond the traditional types of supervisor actions, noted above, and includes any employment action that results in a significant change in an employee's workplace status.  "For example, significantly changing an individual's duties in his or her existing job constitutes a tangible employment action regardless of whether the individual retains the same salary and benefits."

Establishing or expanding policies and procedures to include all types of harassment, and not just sexual harassment, supports an employer's argument that it took reasonable steps to prevent or promptly correct a supervisor's harassment of an employee.  Employers should disseminate these anti-harassment policies widely and regularly in the workplace.  Employees should also receive training about the policies and about harassment.  All allegations of harassment should be properly and promptly investigated and acted upon.

Conclusion

The EEOC's recent Guidance greatly expands an employer's potential vicarious liability for a supervisor's harassment of employees.  An employer may be able to limit this liability with an effective policy covering all types of harassment, if there has been no tangible employment action, but the employer must be cognizant of the EEOC's liberal interpretation regarding an employee's reporting obligation.

Note that the Guidance is an advisory document only.  The EEOC will conduct its investigations and make its determinations pursuant to the Guidance, but the Guidance is not necessarily binding on a court.  A court may consider the Guidance in making a determination, but could reject it.  Therefore, an employer may consider challenging an adverse determination by the EEOC if the appropriate situation arises.

Cleveland, Waters and Bass, P.A. can assist employers in creating and implementing harassment policies and maximizing the availability of the employer's defense against liability for supervisors' harassment.  If you have any questions regarding compliance with the EEOC's recent Guidance or about challenging an adverse EEOC determination, please contact David Fries, friesd@cwbpa.com, Mark Wiseman, wisemanm@cwbpa.com, or any other attorney with whom you have worked, at Cleveland, Waters and Bass, P.A.