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Employer liability for harassment #29
by Ross Runkel at LawMemo

Let's assume we've already established that an employee was sexually harassed (or racially harassed, etc.). That was Lesson #28.

The next step is to find out whether the employer is going to be liable for that harassment under Title VII. Remember that individuals (even supervisors and managers) are not personally liable under Title VII. Only "employers" are. So that's why we must ask whether the employer (the corporation, company, partnership, or whatever) is liable. (As an aside, remember that individuals sometimes can be liable under state law.)

Look at two things: (1) What kind of harassment (either quid-pro-quo or hostile environment. (2) Who is the harasser (manager, supervisor, co-worker, customer).

Quid-pro-quo harassment. If the employer denies the employee a "tangible job benefit" (such as a promotion, pay raise, getting fired, not being hired) because of sex, then that's called quid-pro-quo harassment. The employer will be liable even if the employer has a policy against harassment and management was not aware of what was happening.

Hostile environment harassment.

Hostile environment harassment done by senior officers of the company, the employer is usually liable even if there was a policy prohibiting harassment.

Hostile environment harassment done by a supervisor, the employer will be liable unless the employer can prove an affirmative defense by proving both of the following:

Reasonable care to prevent harassment. The employer has to use reasonable care both (a) to prevent and (b) to promptly correct by having a non-harassment policy. The policy should be widely disseminated, brought to the attention of employees, include a complaint process that includes a method for bypassing the offending supervisor, and management should monitor supervisors' behavior.

-- and --

Failure to take advantage of anti-harassment policy. The employer can prove that the employee failed to take advantage of the employer's anti-harassment policy. For example, the employee knew about the policy but did not notify her supervisor or manager that she was being harassed.

Hostile environment harassment done by a co-worker or a customer, the liability of the employer is proved in a different way. The employee must show that the employer knew the harassment was happening (or reasonably should have known) and then failed to take prompt and effective steps to make it stop.

Coming next: Retaliation #30: Employment Law 101

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