Meagan Whitley Attorney, Lee & Braziel, LLP Megan Dixon Attorney, Lee & Braziel, LLP
FALL 2018 ISSUE
SMALL BUSINESS MATTERS
Title VII and the Texas Commission on Human Rights Act (“TCHRA”) make it the employer’s duty to prevent sexual harassment in the workplace and grant employees the absolute right to be free from sexual harassment.¹ This includes freedom from harassment by supervisors, coworkers, and non-employees like clients or customers. While the burden is ultimately on employers to eliminate sexual harassment, employees play a critical role too. When employers and management are unaware of harassment occurring in the workplace, reports from employees are necessary to bring it to management’s attention so they can take action to stop it.
An employer’s liability for workplace harassment varies depending on whether the alleged harasser was a coworker or a supervisor of the employee.² In the case of coworker harassment, an employer will be responsible only if it knew or should have known of the harassment and failed to take prompt remedial measures.³ In the case of supervisor harassment, in which there may be a misuse of supervisory authority, the law provides a defense to employers who take “affirmative steps” in both preventing and correcting harassment in the workplace. The employer must do more than simply avoid being negligent, however; it must also take active and effective steps to prevent supervisor harassment.⁴ This is known as the Ellerth/Faragher affirmative defense, and it is available only when supervisor harassment does not result in a tangible employment action by the supervisor, such as firing, demoting, or reducing the employee’s pay.⁵ However, if the harassment resulted in a tangible employment action, then the affirmative defense is not available, and the employer will be strictly liable for the harassment.
To use the Ellerth/Faragher affirmative defense, an employer must have a clear sexual harassment policy. But a policy alone may not be enough.⁷ The employer must also prove that the policy is effective.⁸ To do this, employers should have clear policies on sexual harassment, as well as procedures for employees to report sexual harassment. The employer should:
take these complaints seriously;
properly investigate each claim; and
train management on how to properly handle and investigate claims.
Knowledge of sexual harassment may be imputed to the employer if it occurs in the open, but it often happens behind closed doors. In those situations, the only way an employer can stop the harassment is if they know about it. Unfortunately, many employees are afraid to report sexual harassment because they fear retaliation. So, an employer’s sexual harassment policy should also protect employees who make complaints in good faith. Most employers want workplaces that are free of sexual harassment, and most employees dread work environments where harassment is commonplace, or even tolerated. By working together to eliminate workplace sexual harassment, employees and employers can create better morale, foster respect in the workplace, and even increase the company’s profitability. Sources ¹ See 42 U.S.C. §2000e-2(a)(1); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). ² EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 452 (5th Cir.). ³ Vance v. Ball State, 133 S. Ct. 2434, 2443 (2013). ⁴ See Id. at 2440-41; Freeman v. Dal-tile Corp, 750 F.3d 413, 423- 24 (4th Cir. 2014). ⁵ See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 24 U.S. 742 (1998). ⁶ Id. ⁷ See Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314 (11th Cir. 2001) (citing Faragher, 524 U.S. at 808). ⁸ See Loughman v. Malnati Org., Inc., 395 F.3d 404, 407 (7th Cir. 2005) (finding that “the consistent stream of harassment at the restaurant suggests that Malnati’s policy was actually not very effective at all”).