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Definition of a Supervisor
Liability for a “Tangible Employment Action”
Liability if No “Tangible Employment Action”
Steps Employers Can Take to Meet the Reasonable Care Standard
What Is the Message for Employers?
The EEOC has issued guidelines explaining an employer’s liability for a
supervisor’s acts of harassment. Adopting the Supreme Court’s
standard for sexual harassment, the EEOC has extended the rule to
all forms of harassment. This article analyzes the Guidance and
discusses the implications for employers.
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Responding to questions about the effect of two Supreme Court
decisions on sexual harassment, the Equal Employment Opportunity
Commission (EEOC) issued a Guidance to explain when an
employer is liable for harassment by its supervisors. The EEOC
adopted the standard set out in Burlington Industries, Inc. v.
Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca
Raton, 118 S. Ct. 2275 (1998) that employers can avoid liability
for supervisors who engage in hostile work environment harassment if
the harassment does not result in a tangible employment action (such
as termination, demotion, or transfer) that affects the harassed
employee. The EEOC’s Guidance does not apply exclusively to sexual
harassment, which was the focus of the Supreme Court; it also
addresses harassment based on race, color, religion, national
origin, age, protected activity (such as opposing discrimination or
participating in a complaint), and disability.
Even
though the Guidance is not binding on the courts or employers, it is
an indication of how EEOC examiners will view claims that are filed
with the EEOC. The Guidance covers three main topics: identifying
who is a supervisor, harassment by a supervisor that results in a
tangible employment action, and harassment that does not result in a
tangible employment action.
Definition of a Supervisor
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The
Guidance begins by defining the term “supervisor.” The federal
discrimination statutes do not use this term. Instead, they make
employers liable for the discriminatory acts of their “agents,”
which has been interpreted to include supervisors who have the
authority to make decisions on behalf of the employer. According to
the EEOC Guidance, a person who meets any one of the following
criteria may be considered a supervisor:
1. The
person has authority to recommend actions that affect an employee’s
employment status, such as hiring, firing, or demoting.
2. The
person has authority to direct the employee’s daily work activities,
including workload, assignments, and eligibility for training.
3. The
person is not the actual supervisor, but the employee reasonably
believes the individual has authority over him, either because the
chains of command are not clear or the individual is perceived as
powerful enough to affect the employee’s position.
Liability for
a “Tangible Employment Action”
In
determining whether an employer can be liable for its supervisor’s
actions, the EEOC distinguishes between harassment that results in a
“tangible employment action” and that which does not. A tangible
employment action is defined as a significant change in an
employee’s employment status that usually has economic consequences
for the employee and includes hiring, firing, promotion and failure
to promote, demotion, and compensation decisions. Insignificant
changes, such as a change in job title, do not count if no other
aspects of the job, such as salary and duties, are changed. If a
supervisor’s harassment results in a tangible employment action, the
employer automatically will be found liable for the supervisor’s
actions unless it can show a nondiscriminatory reason for the
action.
Liability if
No “Tangible Employment Action”
Alternatively, if harassment does not result in a tangible
employment action, the employer may avoid liability for a
supervisor’s actions if it can prove both of the following elements:
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The
employer exercised reasonable care to prevent and correct promptly
any harassment. To meet this standard, the employer should
disseminate and enforce its policy and complaint procedure and
take the necessary steps to prevent or correct harassment. (See
below for more information on reasonable care.)
-
The
employee unreasonably failed to take advantage of the employer’s
preventive or corrective opportunities or to otherwise avoid harm.
For example, if the employee does not complain about the
harassment, the employer may use this as a defense. However, if
the employee felt the complaint mechanism was ineffective or
feared retaliation, the employer would not meet the standard.
Steps Employers Can Take to Meet the Reasonable Care Standard
The EEOC
suggests several specific steps that employers can take to show that
they used reasonable care in preventing and correcting harassment:
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Establish a policy and complaint procedure. This policy should
contain the following elements: a clear explanation of the
prohibited conduct, including a statement that the employer will
not tolerate harassment; assurance against retaliation; assurance
of confidentiality; a complaint process that provides prompt,
thorough, and impartial investigation; and a promise of immediate
corrective action. In addition, the employer must show that the
policy has been effectively implemented, for example, by providing
to all employees copies of the policy and complaint procedure and
training them about their rights and responsibilities.
-
Make
sure the complaint procedure is effective. Encourage employees to
come forward with complaints and allow them to complain to someone
other than their supervisors.
-
Protect the confidentiality of harassment allegations. Share
information on a “need to know” basis and keep records
confidential. However, do not promise absolute confidentiality
since some information will have to be revealed to complete the
investigation.
-
Investigate allegations promptly, thoroughly, and impartially. As
soon as you learn about a complaint of harassment, you should
investigate. Typically, an investigation should include talking to
the complaining employee, the alleged harasser, and any witnesses
to the activity.
-
Take
appropriate corrective action designed to stop the harassment.
After you have weighed the evidence and determined that harassment
occurred, decide what corrective action you should take. The
remedial measures do not have to be ones the complaining employee
prefers or requests, but they must be reasonably designed to stop
the harassment and correct its effects. Appropriate corrective
action may include an oral or written warning, reassignment,
suspension, or discharge.
What Is the Message for
Employers?
The EEOC
is sending a very clear message: Employers have a duty to prevent
and correct harassment in the workplace and should establish an
antiharassment program. In addition to following the EEOC’s
suggestions for meeting the reasonable care standard (see above),
you can take several extra steps to implement effective policies and
procedures, including:
-
Train
supervisors. Anyone who exercises authority over other employees
should be trained in the organization’s policies and procedures
and how to implement them.
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Get HR
involved in employment actions. HR personnel should be consulted
when decisions are being made regarding hiring, firing, promotion,
or demotion. To help avoid automatic liability, employment actions
need to be reviewed before they are final.
-
Take
prompt action on every complaint. No matter how insignificant the
complaint seems, do not ignore it. Even if there are only rumors
rather than an actual complaint, you should investigate.
-
Prevent possible charges of retaliation. Any adverse employment
actions (such as denial of promotion, demotion, and discharge)
targeting an individual making a complaint or involved in the
investigation may bring charges of retaliation against the
employer.
For more
information see “Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors,” available on the EEOC Web
site at
www.eeoc.gov/docs/harassment.html; EEOC Q&A’s for Small
Employers
www.eeoc.gov/docs/harassment-facts.html. |
Personnel
Policy Service, Inc.
