The U.S. Equal Employment Opportunity
Vicarious Employer Liability for
Unlawful Harassment by Supervisors
1. SUBJECT: Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors
2. PURPOSE: This document provides guidance
regarding employer liability for harassment by supervisors based on sex, race, color,
religion, national origin, age, disability, or protected activity.
3. EFFECTIVE DATE: Upon receipt.
4. EXPIRATION DATE: As an exception to EEOC Order
205.001, Appendix B, Attachment 4, § a(5), this Notice will remain in effect until
rescinded or superseded.
5. ORIGINATOR: Title VII/EPA/ADEA Division, Office
of Legal Counsel.
6. INSTRUCTIONS: File after Section 615 of Volume II
of the Compliance Manual.
Date Ida L. Castro
Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors
Table of Contents
Enforcement Guidance on Vicarious Employer Liability for
Unlawful Harassment by Supervisors
In Burlington Industries, Inc. v. Ellerth, 118 S.
Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), the
Supreme Court made clear that employers are subject to vicarious liability for unlawful
harassment by supervisors. The standard of liability set forth in these decisions is
premised on two principles: 1) an employer is responsible for the acts of its supervisors,
and 2) employers should be encouraged to prevent harassment and employees should be
encouraged to avoid or limit the harm from harassment. In order to accommodate these
principles, the Court held that an employer is always liable for a supervisor's harassment
if it culminates in a tangible employment action. However, if it does not, the employer
may be able to avoid liability or limit damages by establishing an affirmative defense
that includes two necessary elements:
(a) the employer exercised reasonable care to prevent and
correct promptly any harassing behavior, and
(b) the employee unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the employer or to avoid harm
While the Faragher and Ellerth decisions
addressed sexual harassment, the Court's analysis drew upon standards set forth in cases
involving harassment on other protected bases. Moreover, the Commission has always taken
the position that the same basic standards apply to all types of prohibited harassment.1 Thus, the standard of liability set forth in the
decisions applies to all forms of unlawful harassment. (See section II, below.)
Harassment remains a pervasive problem in American
workplaces. The number of harassment charges filed with the EEOC and state fair employment
practices agencies has risen significantly in recent years. For example, the number of
sexual harassment charges has increased from 6,883 in fiscal year 1991 to 15,618 in fiscal
year 1998. The number of racial harassment charges rose from 4,910 to 9,908 charges in the
same time period.
While the anti-discrimination statutes seek to remedy
discrimination, their primary purpose is to prevent violations. The Supreme Court, in Faragher
and Ellerth, relied on Commission guidance which has long advised employers to take
all necessary steps to prevent harassment.2 The new
affirmative defense gives credit for such preventive efforts by an employer, thereby
"implement[ing] clear statutory policy and complement[ing] the Government's Title VII
The question of liability arises only after there is a
determination that unlawful harassment occurred. Harassment does not
violate federal law unless it involves discriminatory treatment on the basis of race,
color, sex, religion, national origin, age of 40 or older, disability, or protected
activity under the anti-discrimination statutes. Furthermore, the anti-discrimination
statutes are not a "general civility code."4
Thus federal law does not prohibit simple teasing, offhand comments, or isolated incidents
that are not "extremely serious."5 Rather,
the conduct must be "so objectively offensive as to alter the 'conditions' of the
victim's employment."6 The conditions of
employment are altered only if the harassment culminated in a tangible employment action
or was sufficiently severe or pervasive to create a hostile work environment.7 Existing Commission guidance on the standards for
determining whether challenged conduct rises to the level of unlawful harassment remains
This document supersedes previous Commission guidance on
the issue of vicarious liability for harassment by supervisors.8
The Commission's long-standing guidance on employer liability for harassment by co-workers
remains in effect - - an employer is liable if it knew or should have known of the
misconduct, unless it can show that it took immediate and appropriate corrective action.9 The standard is the same in the case of non-employees,
but the employer's control over such individuals' misconduct is considered.10
The rule in Ellerth and Faragher regarding
vicarious liability applies to harassment by supervisors based on race, color, sex
(whether or not of a sexual nature11), religion,
national origin, protected activity,12 age, or
disability.13 Thus, employers should establish
anti-harassment policies and complaint procedures covering all forms of unlawful
An employer is subject to vicarious liability for unlawful
harassment if the harassment was committed by "a supervisor with immediate (or
successively higher) authority over the employee."15
Thus, it is critical to determine whether the person who engaged in unlawful harassment
had supervisory authority over the complainant.
The federal employment discrimination statutes do not
contain or define the term "supervisor."16
The statutes make employers liable for the discriminatory acts of their
"agents,"17 and supervisors are agents of
their employers. However, agency principles "may not be transferable in all their
particulars" to the federal employment discrimination statutes.18
The determination of whether an individual has sufficient authority to qualify as a
"supervisor" for purposes of vicarious liability cannot be resolved by a purely
mechanical application of agency law.19 Rather, the
purposes of the anti-discrimination statutes and the reasoning of the Supreme Court
decisions on harassment must be considered.
The Supreme Court, in Faragher and Ellerth,
reasoned that vicarious liability for supervisor harassment is appropriate because
supervisors are aided in such misconduct by the authority that the employers delegated to
them.20 Therefore, that authority must be of a
sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out
the harassment. The determination as to whether a harasser had such authority is based on
his or her job function rather than job title (e.g., "team leader") and
must be based on the specific facts.
An individual qualifies as an employee's
- the individual has authority to undertake or recommend
tangible employment decisions affecting the employee; or
- the individual has authority to direct the employee's daily
An individual qualifies as an employee's
"supervisor" if he or she is authorized to undertake tangible employment
decisions affecting the employee. "Tangible employment decisions" are decisions
that significantly change another employee's employment status. (For a detailed
explanation of what constitutes a tangible employment action, see subsection IV(B),
below.) Such actions include, but are not limited to, hiring, firing, promoting, demoting,
and reassigning the employee. As the Supreme Court stated,"[t]angible employment
actions fall within the special province of the supervisor."21
An individual whose job responsibilities include the
authority to recommend tangible job decisions affecting an employee qualifies as his or
her supervisor even if the individual does not have the final say. As the Supreme Court
recognized in Ellerth, a tangible employment decision "may be subject to
review by higher level supervisors."22 As long
as the individual's recommendation is given substantial weight by the final
decisionmaker(s), that individual meets the definition of supervisor.
An individual who is authorized to direct another
employee's day-to-day work activities qualifies as his or her supervisor even if that
individual does not have the authority to undertake or recommend tangible job decisions.
Such an individual's ability to commit harassment is enhanced by his or her authority to
increase the employee's workload or assign undesirable tasks, and hence it is appropriate
to consider such a person a "supervisor" when determining whether the employer
is vicariously liable.
In Faragher, one of the harassers was authorized to
hire, supervise, counsel, and discipline lifeguards, while the other harasser was
responsible for making the lifeguards' daily work assignments and supervising their work
and fitness training.23 There was no question that
the Court viewed them both as "supervisors," even though one of them
apparently lacked authority regarding tangible job decisions.24
An individual who is temporarily authorized to direct
another employee's daily work activities qualifies as his or her "supervisor"
during that time period. Accordingly, the employer would be subject to vicarious liability
if that individual commits unlawful harassment of a subordinate while serving as his or
On the other hand, someone who merely relays other
officials' instructions regarding work assignments and reports back to those officials
does not have true supervisory authority. Furthermore, someone who directs only a limited
number of tasks or assignments would not qualify as a "supervisor." For example,
an individual whose delegated authority is confined to coordinating a work project of
limited scope is not a "supervisor."
In some circumstances, an employer may be subject to
vicarious liability for harassment by a supervisor who does not have actual authority over
the employee. Such a result is appropriate if the employee reasonably believed that the
harasser had such power.25 The employee might have
such a belief because, for example, the chains of command are unclear. Alternatively, the
employee might reasonably believe that a harasser with broad delegated powers has the
ability to significantly influence employment decisions affecting him or her even if the
harasser is outside the employee's chain of command.
If the harasser had no actual supervisory power over the
employee, and the employee did not reasonably believe that the harasser had such
authority, then the standard of liability for co-worker harassment applies.
An employer is always liable for harassment by a supervisor
on a prohibited basis that culminates in a tangible employment action. No affirmative
defense is available in such cases.26 The Supreme
Court recognized that this result is appropriate because an employer acts through its
supervisors, and a supervisor's undertaking of a tangible employment action constitutes an
act of the employer.27
A tangible employment action is "a significant change
in employment status."28 Unfulfilled threats
are insufficient. Characteristics of a tangible employment action are:29
- A tangible employment action is the means by which the
supervisor brings the official power of the enterprise to bear on subordinates, as
demonstrated by the following:
- it requires an official act of the enterprise;
- it usually is documented in official company records;
- it may be subject to review by higher level supervisors; and
- it often requires the formal approval of the enterprise and
use of its internal processes.
- A tangible employment action usually inflicts direct
- A tangible employment action, in most instances, can only be
caused by a supervisor or other person acting with the authority of the company.
Examples of tangible employment actions include:30
- hiring and firing;
- promotion and failure to promote;
- undesirable reassignment;
- a decision causing a significant change in benefits;
- compensation decisions; and
- work assignment.
Any employment action qualifies as "tangible" if
it results in a significant change in employment 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.32 Similarly, altering an individual's
duties in a way that blocks his or her opportunity for promotion or salary increases also
constitutes a tangible employment action.33
On the other hand, an employment action does not reach the
threshold of "tangible" if it results in only an insignificant change in the
complainant's employment status. For example, altering an individual's job title does not
qualify as a tangible employment action if there is no change in salary, benefits, duties,
or prestige, and the only effect is a bruised ego.34
However, if there is a significant change in the status of the position because the new
title is less prestigious and thereby effectively constitutes a demotion, a tangible
employment action would be found.35
If a supervisor undertakes or recommends a tangible job
action based on a subordinate's response to unwelcome sexual demands, the employer is
liable and cannot raise the affirmative defense. The result is the same whether the
employee rejects the demands and is subjected to an adverse tangible employment action or
submits to the demands and consequently obtains a tangible job benefit.36 Such harassment previously would have been
characterized as "quid pro quo." It would be a perverse result if the employer
is foreclosed from raising the affirmative defense if its supervisor denies a tangible job
benefit based on an employee's rejection of unwelcome sexual demands, but can raise the
defense if its supervisor grants a tangible job benefit based on submission to such
demands. The Commission rejects such an analysis. In both those situations the supervisor
undertakes a tangible employment action on a discriminatory basis. The Supreme Court
stated that there must be a significant change in employment status; it did not
require that the change be adverse in order to qualify as tangible.37
If a challenged employment action is not
"tangible," it may still be considered, along with other evidence, as part of a
hostile environment claim that is subject to the affirmative defense. In Ellerth,
the Court concluded that there was no tangible employment action because the supervisor
never carried out his threats of job harm. Ellerth could still proceed with her claim of
harassment, but the claim was properly "categorized as a hostile work environment
claim which requires a showing of severe or pervasive conduct." 118 S. Ct. at 2265.
When harassment culminates in a tangible employment action,
the employer cannot raise the affirmative defense. This sort of claim is analyzed like any
other case in which a challenged employment action is alleged to be discriminatory. If the
employer produces evidence of a non- discriminatory explanation for the tangible
employment action, a determination must be made whether that explanation is a pretext
designed to hide a discriminatory motive.
For example, if an employee alleged that she was demoted
because she refused her supervisor's sexual advances, a determination would have to be
made whether the demotion was because of her response to the advances, and hence
because of her sex. Similarly, if an employee alleges that he was discharged after being
subjected to severe or pervasive harassment by his supervisor based on his national
origin, a determination would have to be made whether the discharge was because of
the employee's national origin.
A strong inference of discrimination will arise whenever a
harassing supervisor undertakes or has significant input into a tangible employment action
affecting the victim,38 because it can be
"assume[d] that the harasser . . . could not act as an objective, non-discriminatory
decisionmaker with respect to the plaintiff."39
However, if the employer produces evidence of a non-discriminatory reason for the action,
the employee will have to prove that the asserted reason was a pretext designed to hide
the true discriminatory motive.
If it is determined that the tangible action was based on a
discriminatory reason linked to the preceding harassment, relief could be sought for the
entire pattern of misconduct culminating in the tangible employment action, and no
affirmative defense is available.40 However, the
harassment preceding the tangible employment action must be severe or pervasive in order
to be actionable.41 If the tangible employment
action was based on a non-discriminatory motive, then the employer would have an
opportunity to raise the affirmative defense to a claim based on the preceding harassment.42
When harassment by a supervisor creates an unlawful hostile
environment but does not result in a tangible employment action, the employer can raise an
affirmative defense to liability or damages, which it must prove by a preponderance of the
evidence. The defense consists of two necessary elements:
(a) the employer exercised
reasonable care to prevent and correct promptly any harassment; and
(b) the employee unreasonably
failed to take advantage of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.
If an employer can prove that it discharged its duty of
reasonable care and that the employee could have avoided all of the harm but unreasonably
failed to do so, the employer will avoid all liability for unlawful harassment.43 For example, if an employee was subjected to a
pattern of disability-based harassment that created an unlawful hostile environment, but
the employee unreasonably failed to complain to management before she suffered emotional
harm and the employer exercised reasonable care to prevent and promptly correct the
harassment, then the employer will avoid all liability.
If an employer cannot prove that it discharged its duty of
reasonable care and that the employee unreasonably failed to avoid the harm, the
employer will be liable. For example, if unlawful harassment by a supervisor occurred and
the employer failed to exercise reasonable care to prevent it, the employer will be liable
even if the employee unreasonably failed to complain to management or even if the employer
took prompt and appropriate corrective action when it gained notice.44
In most circumstances, if employers and employees discharge
their respective duties of reasonable care, unlawful harassment will be prevented and
there will be no reason to consider questions of liability. An effective complaint
procedure "encourages employees to report harassing conduct before it becomes severe
or pervasive,"45 and if an employee promptly
utilizes that procedure, the employer can usually stop the harassment before actionable
In some circumstances, however, unlawful harassment will
occur and harm will result despite the exercise of requisite legal care by the employer
and employee. For example, if an employee's supervisor directed frequent, egregious racial
epithets at him that caused emotional harm virtually from the outset, and the employee
promptly complained, corrective action by the employer could prevent further harm but
might not correct the actionable harm that the employee already had suffered.47 Alternatively, if an employee complained about
harassment before it became severe or pervasive, remedial measures undertaken by the
employer might fail to stop the harassment before it reaches an actionable level, even if
those measures are reasonably calculated to halt it. In these circumstances, the employer
will be liable because the defense requires proof that it exercised reasonable legal care and
that the employee unreasonably failed to avoid the harm. While a notice- based negligence
standard would absolve the employer of liability, the standard set forth in Ellerth
and Faragher does not. As the Court explained, vicarious liability sets a
"more stringent standard" for the employer than the "minimum standard"
of negligence theory.48
While this result may seem harsh to a law abiding employer,
it is consistent with liability standards under the anti-discrimination statutes which
generally make employers responsible for the discriminatory acts of their supervisors.49 If, for example, a supervisor rejects a candidate
for promotion because of national origin-based bias, the employer will be liable
regardless of whether the employee complained to higher management and regardless of
whether higher management had any knowledge about the supervisor's motivation.50 Harassment is the only type of discrimination
carried out by a supervisor for which an employer can avoid liability, and that limitation
must be construed narrowly. The employer will be shielded from liability for harassment by
a supervisor only if it proves that it exercised reasonable care in preventing and
correcting the harassment and that the employee unreasonably failed to avoid all of
the harm. If both parties exercise reasonable care, the defense will fail.
In some cases, an employer will be unable to avoid
liability completely, but may be able to establish the affirmative defense as a means to
limit damages.51 The defense only limits damages
where the employee reasonably could have avoided some but not all of the harm from the
harassment. In the example above, in which the supervisor used frequent, egregious racial
epithets, an unreasonable delay by the employee in complaining could limit damages but not
eliminate liability entirely. This is because a reasonably prompt complaint would have
reduced, but not eliminated, the actionable harm.52
The first prong of the affirmative defense requires a
showing by the employer that it undertook reasonable care to prevent and promptly correct
harassment. Such reasonable care generally requires an employer to establish, disseminate,
and enforce an anti-harassment policy and complaint procedure and to take other reasonable
steps to prevent and correct harassment. The steps described below are not mandatory
requirements - - whether or not an employer can prove that it exercised reasonable care
depends on the particular factual circumstances and, in some cases, the nature of the
employer's workforce. Small employers may be able to effectively prevent and correct
harassment through informal means, while larger employers may have to institute more
There are no "safe harbors" for employers based
on the written content of policies and procedures. Even the best policy and complaint
procedure will not alone satisfy the burden of proving reasonable care if, in the
particular circumstances of a claim, the employer failed to implement its process
effectively.54 If, for example, the employer has an
adequate policy and complaint procedure and properly responded to an employee's complaint
of harassment, but management ignored previous complaints by other employees about the
same harasser, then the employer has not exercised reasonable care in preventing the
harassment.55 Similarly, if the employer has an
adequate policy and complaint procedure but an official failed to carry out his or her
responsibility to conduct an effective investigation of a harassment complaint, the
employer has not discharged its duty to exercise reasonable care. Alternatively, lack of a
formal policy and complaint procedure will not defeat the defense if the employer
exercised sufficient care through other means.
It generally is necessary for employers to establish,
publicize, and enforce anti-harassment policies and complaint procedures. As the Supreme
Court stated, "Title VII is designed to encourage the creation of anti-harassment
policies and effective grievance mechanisms." Ellerth, 118 S. Ct. at 2270.
While the Court noted that this "is not necessary in every instance as a matter of
law,"56 failure to do so will make it
difficult for an employer to prove that it exercised reasonable care to prevent and
correct harassment.57 (See section V(C)(3), below,
for discussion of preventive and corrective measures by small businesses.)
An employer should provide every employee with a copy of
the policy and complaint procedure, and redistribute it periodically. The policy and
complaint procedure should be written in a way that will be understood by all employees in
the employer's workforce. Other measures to ensure effective dissemination of the policy
and complaint procedure include posting them in central locations and incorporating them
into employee handbooks. If feasible, the employer should provide training to all
employees to ensure that they understand their rights and responsibilities.
An anti-harassment policy and complaint
procedure should contain, at a minimum, the following elements:
- A clear explanation of prohibited conduct;
- Assurance that employees who make complaints of harassment
or provide information related to such complaints will be protected against retaliation;
- A clearly described complaint process that provides
accessible avenues of complaint;
- Assurance that the employer will protect the confidentiality
of harassment complaints to the extent possible;
- A complaint process that provides a prompt, thorough, and
impartial investigation; and
- Assurance that the employer will take immediate and
appropriate corrective action when it determines that harassment has occurred.
The above elements are explained in the following
An employer's policy should make clear that it will not
tolerate harassment based on sex (with or without sexual conduct), race, color, religion,
national origin, age, disability, and protected activity (i.e., opposition to
prohibited discrimination or participation in the statutory complaint process). This
prohibition should cover harassment by anyone in the workplace supervisors,
co- workers, or non-employees.58 Management should
convey the seriousness of the prohibition. One way to do that is for the mandate to
"come from the top," i.e., from upper management.
The policy should encourage employees to report harassment before
it becomes severe or pervasive. While isolated incidents of harassment generally do not
violate federal law, a pattern of such incidents may be unlawful. Therefore, to discharge
its duty of preventive care, the employer must make clear to employees that it will stop
harassment before it rises to the level of a violation of federal law.
An employer should make clear that it will not tolerate
adverse treatment of employees because they report harassment or provide information
related to such complaints. An anti- harassment policy and complaint procedure will not be
effective without such an assurance.59
Management should undertake whatever measures are necessary
to ensure that retaliation does not occur. For example, when management investigates a
complaint of harassment, the official who interviews the parties and witnesses should
remind these individuals about the prohibition against retaliation. Management also should
scrutinize employment decisions affecting the complainant and witnesses during and after
the investigation to ensure that such decisions are not based on retaliatory motives.
An employer's harassment complaint procedure should be
designed to encourage victims to come forward. To that end, it should clearly explain the
process and ensure that there are no unreasonable obstacles to complaints. A complaint
procedure should not be rigid, since that could defeat the goal of preventing and
correcting harassment. When an employee complains to management about alleged harassment,
the employer is obligated to investigate the allegation regardless of whether it conforms
to a particular format or is made in writing.
The complaint procedure should provide accessible points of
contact for the initial complaint.60 A complaint
process is not effective if employees are always required to complain first to their
supervisors about alleged harassment, since the supervisor may be a harasser.61 Moreover, reasonable care in preventing and
correcting harassment requires an employer to instruct all supervisors to report
complaints of harassment to appropriate officials.62
It is advisable for an employer to designate at least one
official outside an employee's chain of command to take complaints of harassment. For
example, if the employer has an office of human resources, one or more officials in that
office could be authorized to take complaints. Allowing an employee to bypass his or her
chain of command provides additional assurance that the complaint will be handled in an
impartial manner, since an employee who reports harassment by his or her supervisor may
feel that officials within the chain of command will more readily believe the supervisor's
version of events.
It also is important for an employer's anti-harassment
policy and complaint procedure to contain information about the time frames for filing
charges of unlawful harassment with the EEOC or state fair employment practice agencies
and to explain that the deadline runs from the last date of unlawful harassment, not from
the date that the complaint to the employer is resolved.63
While a prompt complaint process should make it feasible for an employee to delay deciding
whether to file a charge until the complaint to the employer is resolved, he or she is not
required to do so.64
An employer should make clear to employees that it will
protect the confidentiality of harassment allegations to the extent possible. An employer
cannot guarantee complete confidentiality, since it cannot conduct an effective
investigation without revealing certain information to the alleged harasser and potential
witnesses. However, information about the allegation of harassment should be shared only
with those who need to know about it. Records relating to harassment complaints should be
kept confidential on the same basis.65
A conflict between an employee's desire for confidentiality
and the employer's duty to investigate may arise if an employee informs a supervisor about
alleged harassment, but asks him or her to keep the matter confidential and take no
action. Inaction by the supervisor in such circumstances could lead to employer liability.
While it may seem reasonable to let the employee determine whether to pursue a complaint,
the employer must discharge its duty to prevent and correct harassment.66 One mechanism to help avoid such conflicts would be
for the employer to set up an informational phone line which employees can use to discuss
questions or concerns about harassment on an anonymous basis.67
An employer should set up a mechanism for a prompt,
thorough, and impartial investigation into alleged harassment. As soon as management
learns about alleged harassment, it should determine whether a detailed fact-finding
investigation is necessary. For example, if the alleged harasser does not deny the
accusation, there would be no need to interview witnesses, and the employer could
immediately determine appropriate corrective action.
If a fact-finding investigation is necessary, it should be
launched immediately. The amount of time that it will take to complete the investigation
will depend on the particular circumstances.68 If,
for example, multiple individuals were allegedly harassed, then it will take longer to
interview the parties and witnesses.
It may be necessary to undertake intermediate measures
before completing the investigation to ensure that further harassment does not occur.
Examples of such measures are making scheduling changes so as to avoid contact between the
parties; transferring the alleged harasser; or placing the alleged harasser on
non-disciplinary leave with pay pending the conclusion of the investigation. The
complainant should not be involuntarily transferred or otherwise burdened, since such
measures could constitute unlawful retaliation.
The employer should ensure that the individual who conducts
the investigation will objectively gather and consider the relevant facts. The alleged
harasser should not have supervisory authority over the individual who conducts the
investigation and should not have any direct or indirect control over the investigation.
Whoever conducts the investigation should be well-trained in the skills that are required
for interviewing witnesses and evaluating credibility.
When detailed fact-finding is necessary, the investigator
should interview the complainant, the alleged harasser, and third parties who could
reasonably be expected to have relevant information. Information relating to the personal
lives of the parties outside the workplace would be relevant only in unusual
circumstances. When interviewing the parties and witnesses, the investigator should
refrain from offering his or her opinion.
The following are examples of questions that may be
appropriate to ask the parties and potential witnesses. Any actual investigation must be
tailored to the particular facts.
Questions to Ask the Complainant:
- Who, what, when, where, and how: Who committed the
alleged harassment? What exactly occurred or was said? When did it occur and
is it still ongoing? Where did it occur? How often did it occur? How
did it affect you?
- How did you react? What response did you make when the
incident(s) occurred or afterwards?
- How did the harassment affect you? Has your job been
affected in any way?
- Are there any persons who have relevant information? Was
anyone present when the alleged harassment occurred? Did you tell anyone about it? Did
anyone see you immediately after episodes of alleged harassment?
- Did the person who harassed you harass anyone else? Do you
know whether anyone complained about harassment by that person?
- Are there any notes, physical evidence, or other
documentation regarding the incident(s)?
- How would you like to see the situation resolved?
- Do you know of any other relevant information?
Questions to Ask the Alleged Harasser:
- What is your response to the allegations?
- If the harasser claims that the allegations are false, ask
why the complainant might lie.
- Are there any persons who have relevant information?
- Are there any notes, physical evidence, or other
documentation regarding the incident(s)?
- Do you know of any other relevant information?
Questions to Ask Third Parties:
- What did you see or hear? When did this occur? Describe the
alleged harasser's behavior toward the complainant and toward others in the workplace.
- What did the complainant tell you? When did s/he tell you
- Do you know of any other relevant information?
- Are there other persons who have relevant information?
If there are conflicting versions of relevant events, the
employer will have to weigh each party's credibility. Credibility assessments can be
critical in determining whether the alleged harassment in fact occurred. Factors to
- Inherent plausibility: Is the testimony believable on
its face? Does it make sense?
- Demeanor: Did the person seem to be telling the truth
- Motive to falsify: Did the person have a reason to
- Corroboration: Is there witness testimony
(such as testimony by eye-witnesses, people who saw the person soon after the alleged
incidents, or people who discussed the incidents with him or her at around the time that
they occurred) or physical evidence (such as written documentation) that
corroborates the party's testimony?
- Past record: Did the alleged harasser have a history
of similar behavior in the past?
None of the above factors are determinative as to
credibility. For example, the fact that there are no eye-witnesses to the alleged
harassment by no means necessarily defeats the complainant's credibility, since harassment
often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged
in similar behavior in the past does not necessarily mean that he or she did so again.
Once all of the evidence is in, interviews are finalized,
and credibility issues are resolved, management should make a determination as to whether
harassment occurred. That determination could be made by the investigator, or by a
management official who reviews the investigator's report. The parties should be informed
of the determination.
In some circumstances, it may be difficult for management
to reach a determination because of direct contradictions between the parties and a lack
of documentary or eye-witness corroboration. In such cases, a credibility assessment may
form the basis for a determination, based on factors such as those set forth above.
If no determination can be made because the evidence is
inconclusive, the employer should still undertake further preventive measures, such as
training and monitoring.
An employer should make clear that it will undertake
immediate and appropriate corrective action, including discipline, whenever it determines
that harassment has occurred in violation of the employer's policy. Management should
inform both parties about these measures.69
Remedial measures should be designed to stop the
harassment, correct its effects on the employee, and ensure that the harassment does not
recur. These remedial measures need not be those that the employee requests or prefers, as
long as they are effective.
In determining disciplinary measures, management should
keep in mind that the employer could be found liable if the harassment does not stop. At
the same time, management may have concerns that overly punitive measures may subject the
employer to claims such as wrongful discharge, and may simply be inappropriate.
To balance the competing concerns, disciplinary measures
should be proportional to the seriousness of the offense.70
If the harassment was minor, such as a small number of "off-color" remarks by an
individual with no prior history of similar misconduct, then counseling and an oral
warning might be all that is necessary. On the other hand, if the harassment was severe or
persistent, then suspension or discharge may be appropriate.71
Remedial measures should not adversely affect the
complainant. Thus, for example, if it is necessary to separate the parties, then the
harasser should be transferred (unless the complainant prefers otherwise).72 Remedial responses that penalize the complainant
could constitute unlawful retaliation and are not effective in correcting the harassment.73
Remedial measures also should correct the effects of the
harassment. Such measures should be designed to put the employee in the position s/he
would have been in had the misconduct not occurred.
Examples of Measures to Stop the Harassment and Ensure
that it Does Not Recur:
- oral74 or written
warning or reprimand;
- transfer or reassignment;
- reduction of wages;
- training or counseling of harasser to ensure that s/he
understands why his or her conduct violated the employer's anti-harassment policy; and
- monitoring of harasser to ensure that harassment stops.
Examples of Measures to Correct the Effects of the
- restoration of leave taken because of the harassment;
- expungement of negative evaluation(s) in employee's
personnel file that arose from the harassment;
- apology by the harasser;
- monitoring treatment of employee to ensure that s/he is not
subjected to retaliation by the harasser or others in the work place because of the
- correction of any other harm caused by the harassment (e.g.,
compensation for losses).
An employer's responsibility to exercise reasonable care to
prevent and correct harassment is not limited to implementing an anti-harassment policy
and complaint procedure. As the Supreme Court stated, "the employer has a greater
opportunity to guard against misconduct by supervisors than by common workers; employers
have greater opportunity and incentive to screen them, train them, and monitor their
performance." Faragher, 118 S. Ct. at 2291.
An employer's duty to exercise due care includes
instructing all of its supervisors and managers to address or report to appropriate
officials complaints of harassment regardless of whether they are officially designated to
take complaints75 and regardless of whether a
complaint was framed in a way that conforms to the organization's particular complaint
procedures.76 For example, if an employee files an EEOC
charge alleging unlawful harassment, the employer should launch an internal investigation
even if the employee did not complain to management through its internal complaint
Furthermore, due care requires management to correct
harassment regardless of whether an employee files an internal complaint, if the conduct
is clearly unwelcome. For example, if there are areas in the workplace with graffiti
containing racial or sexual epithets, management should eliminate the graffiti and not
wait for an internal complaint.77
An employer should ensure that its supervisors and managers
understand their responsibilities under the organization's anti-harassment policy and
complaint procedure. Periodic training of those individuals can help achieve that result.
Such training should explain the types of conduct that violate the employer's
anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors
and managers when they learn of alleged harassment; and the prohibition against
An employer should keep track of its supervisors' and
managers' conduct to make sure that they carry out their responsibilities under the
organization's anti-harassment program.78 For
example, an employer could include such compliance in formal evaluations.
Reasonable preventive measures include screening applicants
for supervisory jobs to see if any have a record of engaging in harassment. If so, it may
be necessary for the employer to reject a candidate on that basis or to take additional
steps to prevent harassment by that individual.
Finally, it is advisable for an employer to keep records of
all complaints of harassment. Without such records, the employer could be unaware of a
pattern of harassment by the same individual. Such a pattern would be relevant to
credibility assessments and disciplinary measures.79
It may not be necessary for an employer of a small
workforce to implement the type of formal complaint process described above. If it puts
into place an effective, informal mechanism to prevent and correct harassment, a small
employer could still satisfy the first prong of the affirmative defense to a claim of
harassment.80 As the Court recognized in Faragher,
an employer of a small workforce might informally exercise sufficient care to prevent
For example, such an employer's failure to disseminate a
written policy against harassment on protected bases would not undermine the affirmative
defense if it effectively communicated the prohibition and an effective complaint
procedure to all employees at staff meetings. An owner of a small business who regularly
meets with all of his or her employees might tell them at monthly staff meetings that he
or she will not tolerate harassment and that anyone who experiences harassment should
bring it "straight to the top."
If a complaint is made, the business, like any other
employer, must conduct a prompt, thorough, and impartial investigation and undertake swift
and appropriate corrective action where appropriate. The questions set forth in Section
V(C)(1)(e)(i), above, can help guide the inquiry and the factors set forth in Section
V(C)(1)(e)(ii) should be considered in evaluating the credibility of each of the parties.
The second prong of the affirmative defense requires a
showing by the employer that the aggrieved employee "unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the employer or to
avoid harm otherwise." Faragher, 118 S. Ct. at 2293; Ellerth, 118 S.
Ct. at 2270.
This element of the defense arises from the general theory
"that a victim has a duty 'to use such means as are reasonable under the
circumstances to avoid or minimize the damages' that result from violations of the
statute." Faragher, 18 S. Ct. at 2292, quoting Ford Motor Co. v. EEOC,
458 U.S. 219, 231 n.15 (1982). Thus an employer who exercised reasonable care as described
in subsection V(C), above, is not liable for unlawful harassment if the aggrieved employee
could have avoided all of the actionable harm. If some but not all of the harm could have
been avoided, then an award of damages will be mitigated accordingly.82
A complaint by an employee does not automatically defeat
the employer's affirmative defense. If, for example, the employee provided no information
to support his or her allegation, gave untruthful information, or otherwise failed to
cooperate in the investigation, the complaint would not qualify as an effort to avoid
harm. Furthermore, if the employee unreasonably delayed complaining, and an earlier
complaint could have reduced the harm, then the affirmative defense could operate to
Proof that the employee unreasonably failed to use any
complaint procedure provided by the employer will normally satisfy the employer's burden.83 However, it is important to emphasize that an
employee who failed to complain does not carry a burden of proving the reasonableness of
that decision. Rather, the burden lies with the employer to prove that the employee's
failure to complain was unreasonable.
A determination as to whether an employee unreasonably
failed to complain or otherwise avoid harm depends on the particular circumstances and
information available to the employee at that time.84
An employee should not necessarily be expected to complain to management immediately after
the first or second incident of relatively minor harassment. Workplaces need not become
battlegrounds where every minor, unwelcome remark based on race, sex, or another protected
category triggers a complaint and investigation. An employee might reasonably ignore a
small number of incidents, hoping that the harassment will stop without resort to the
complaint process.85 The employee may directly say
to the harasser that s/he wants the misconduct to stop, and then wait to see if that is
effective in ending the harassment before complaining to management. If the harassment
persists, however, then further delay in complaining might be found unreasonable.
There might be other reasonable explanations for an
employee's delay in complaining or entire failure to utilize the employer's complaint
process. For example, the employee might have had reason to believe that:86
- using the complaint mechanism entailed a risk of
- there were obstacles to complaints; and
- the complaint mechanism was not effective.
To establish the second prong of the affirmative defense,
the employer must prove that the belief or perception underlying the employee's failure to
complain was unreasonable.
An employer cannot establish that an employee unreasonably
failed to use its complaint procedure if that employee reasonably feared retaliation.
Surveys have shown that employees who are subjected to harassment frequently do not
complain to management due to fear of retaliation.87
To assure employees that such a fear is unwarranted, the employer must clearly communicate
and enforce a policy that no employee will be retaliated against for complaining of
An employee's failure to use the employer's complaint
procedure would be reasonable if that failure was based on unnecessary obstacles to
complaints. For example, if the process entailed undue expense by the employee,88 inaccessible points of contact for making
complaints,89 or unnecessarily intimidating or
burdensome requirements, failure to invoke it on such a basis would be reasonable.
An employee's failure to participate in a mandatory
mediation or other alternative dispute resolution process also does not does not
constitute unreasonable failure to avoid harm. While an employee can be expected to
cooperate in the employer's investigation by providing relevant information, an employee
can never be required to waive rights, either substantive or procedural, as an element of
his or her exercise of reasonable care.90 Nor must
an employee have to try to resolve the matter with the harasser as an element of
exercising due care.
An employer cannot establish the second prong of the
defense based on the employee's failure to complain if that failure was based on a
reasonable belief that the process was ineffective. For example, an employee would have a
reasonable basis to believe that the complaint process is ineffective if the procedure
required the employee to complain initially to the harassing supervisor. Such a reasonable
basis also would be found if he or she was aware of instances in which co- workers'
complaints failed to stop harassment. One way to increase employees' confidence in the
efficacy of the complaint process would be for the employer to release general information
to employees about corrective and disciplinary measures undertaken to stop harassment.91
Generally, an employer can prove the second prong of the
affirmative defense if the employee unreasonably failed to utilize its complaint process.
However, such proof will not establish the defense if the employee made other efforts to
For example, a prompt complaint by the employee to the EEOC
or a state fair employment practices agency while the harassment is ongoing could qualify
as such an effort. A union grievance could also qualify as an effort to avoid harm.92 Similarly, a staffing firm worker who is harassed at
the client's workplace might report the harassment either to the staffing firm or to the
client, reasonably expecting that either would act to correct the problem.93 Thus the worker's failure to complain to one of
those entities would not bar him or her from subsequently bringing a claim against it.
With these and any other efforts to avoid harm, the timing
of the complaint could affect liability or damages. If the employee could have avoided
some of the harm by complaining earlier, then damages would be mitigated accordingly.
An employer is liable for unlawful harassment whenever the
harasser is of a sufficiently high rank to fall "within that class . . . who may be
treated as the organization's proxy." Faragher, 118 S. Ct. at 2284.94 In such circumstances, the official's unlawful
harassment is imputed automatically to the employer.95
Thus the employer cannot raise the affirmative defense, even if the harassment did not
result in a tangible employment action.
The Court, in Faragher, cited the following examples
of officials whose harassment could be imputed automatically to the employer:
- corporate officer
Faragher, 118 S. Ct. at 2284.
The Supreme Court's rulings in Ellerth and Faragher
create an incentive for employers to implement and enforce strong policies prohibiting
harassment and effective complaint procedures. The rulings also create an incentive for
employees to alert management about harassment before it becomes severe and pervasive. If
employers and employees undertake these steps, unlawful harassment can often be prevented,
thereby effectuating an important goal of the anti-discrimination statutes.
1 See, e.g., 29 C.F.R. § 1604.11 n. 1
("The principles involved here continue to apply to race, color, religion or national
origin."); EEOC Compliance Manual Section 615.11(a) (BNA 615:0025 ("Title VII
law and agency principles will guide the determination of whether an employer is liable
for age harassment by its supervisors, employees, or non-employees"). See, e.g., 29
C.F.R. § 1604.11 n. 1
("The principles involved here continue to apply to race, color, religion or national
origin."); EEOC Compliance Manual Section 615.11(a) (BNA 615:0025 ("Title VII
law and agency principles will guide the determination of whether an employer is liable
for age harassment by its supervisors, employees, or non-employees").
2 See 1980
Guidelines at 29 C.F.R. § 1604.11(f) and Policy Guidance on Current Issues of Sexual
Harassment, Section E, 8 FEP Manual 405:6699 (Mar. 19, 1990), quoted in Faragher,
118 S. Ct. at 2292.
3 Faragher, 118
S. Ct. at 2292.
4 Oncale v.
Sundowner Offshore Services, Inc., 118 S. Ct. 998, 1002 (1998).
5 Faragher, 118
S.Ct. at 2283. However, when isolated incidents that are not "extremely serious"
come to the attention of management, appropriate corrective action should still be taken
so that they do not escalate. See Section V(C)(1)(a), below.
6 Oncale, 118 S.
Ct. at 1003.
7 Some previous
Commission documents classified harassment as either "quid pro quo" or hostile
environment. However, it is now more useful to distinguish between harassment that results
in a tangible employment action and harassment that creates a hostile work environment,
since that dichotomy determines whether the employer can raise the affirmative defense to
vicarious liability. Guidance on the definition of "tangible employment action"
appears in section IV(B), below.
8 The guidance in this
document applies to federal sector employers, as well as all other employers covered by
the statutes enforced by the Commission.
9 29 C.F.R. §
10 The Commission will
rescind Subsection 1604.11(c) of the 1980 Guidelines on Sexual Harassment, 29 CFR §
1604.11(c). In addition, the following Commission guidance is no longer in effect:
Subsection D of the 1990 Policy Statement on Current Issues in Sexual
Harassment("Employer Liability for Harassment by Supervisors"), EEOC Compliance
Manual (BNA) N:4050-58 (3/19/90); and EEOC Compliance Manual Section 615.3(c) (BNA)
6:15-0007 - 0008.
The remaining portions of the 1980 Guidelines, the 1990
Policy Statement, and Section 615 of the Compliance Manual remain in effect. Other
Commission guidance on harassment also remains in effect, including the Enforcement
Guidance on Harris v. Forklift Sys., Inc., EEOC Compliance Manual (BNA) N:4071
(3/8/94) and the Policy Guidance on Employer Liability for Sexual Favoritism, EEOC
Compliance Manual (BNA) N:5051 (3/19/90).
11 Harassment that is
targeted at an individual because of his or her sex violates Title VII even if it does not
involve sexual comments or conduct. Thus, for example, frequent, derogatory remarks about
women could constitute unlawful harassment even if the remarks are not sexual in nature. See
1990 Policy Guidance on Current Issues of Sexual Harassment, subsection C(4) ("sex-
based harassment - that is, harassment not involving sexual activity or language - may
also give rise to Title VII liability . . . if it is 'sufficiently patterned or pervasive'
and directed at employees because of their sex").
activity" means opposition to discrimination or participation in proceedings covered
by the anti-discrimination statutes. Harassment based on protected activity can constitute
unlawful retaliation. See EEOC Compliance Manual Section 8
("Retaliation") (BNA) 614:001 (May 20, 1998).
13 For cases applying Ellerth
and Faragher to harassment on different bases, see Hafford v. Seidner, 167
F.3d 1074, 1080 (6th Cir. 1999) (religion and race); Breeding v. Arthur J.
Gallagher and Co., 164 F.3d 1151, 1158 (8th Cir. 1999) (age); Allen v.
Michigan Department of Corrections, 165 F.3d 405, 411 (6th Cir. 1999)
(race) ; Richmond-Hopes v. City of Cleveland, No. 97-3595, 1998 WL 808222 at *9 (6th
Cir. Nov. 16, 1998) (unpublished) (retaliation); Wright- Simmons v. City of Oklahoma
City, 155 F.3d 1264, 1270 (10th Cir. 1998) (race); Gotfryd v.
Book Covers, Inc., No. 97 C 7696, 1999 WL 20925 at *5 (N.D. Ill. Jan. 7, 1999)
(national origin). See also Wallin v. Minnesota Department of Corrections, 153 F.3d
681, 687 (8th Cir. 1998) (assuming without deciding that ADA hostile
environment claims are modeled after Title VII claims), cert. denied, 119 S. Ct.
14 The majority's
analysis in both Faragher and Ellerth drew upon the liability standards for
harassment on other protected bases. It is therefore clear that the same standards apply. See
Faragher, 118 S. Ct. at 2283 (in determining appropriate standard of liability for
sexual harassment by supervisors, Court "drew upon cases recognizing liability for
discriminatory harassment based on race and national origin"); Ellerth, 118 S.
Ct. at 2268 (Court imported concept of "tangible employment action" in race, age
and national origin discrimination cases for resolution of vicarious liability in sexual
harassment cases). See also cases cited in n.13, above.
15 Ellerth, 118
S. Ct. at 2270; Faragher, 118 S. Ct. at 2293.
16 Numerous statutes
contain the word "supervisor," and some contain definitions of the term. See,
e.g., 12 U.S.C. § 1813(r) (definition of "State bank supervisor" in
legislation regarding Federal Deposit Insurance Corporation); 29 U.S.C. § 152(11)
(definition of "supervisor" in National Labor Relations Act); 42 U.S.C.. §
8262(2) (definition of "facility energy supervisor" in Federal Energy Initiative
legislation). The definitions vary depending on the purpose and structure of each statute.
The definition of the word "supervisor" under other statutes does not control,
and is not affected by, the meaning of that term under the employment discrimination
17 See 42
U.S.C. 2000e(a) (Title VII); 29 U.S.C. 630(b) (ADEA); and 42 U.S.C. §12111(5)(A) (ADA)
(all defining "employer" as including any agent of the employer).
18 Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986); Faragher, 118 S. Ct. at 2290 n.3; Ellerth,
118 S. Ct. at 2266.
19 See Faragher,
118 S. Ct. at 2288 (analysis of vicarious liability "calls not for a mechanical
application of indefinite and malleable factors set forth in the Restatement . . . but
rather an inquiry into the reasons that would support a conclusion that harassing behavior
ought to be held within the scope of a supervisor's employment . . . ") and at 2290
n.3 (agency concepts must be adapted to the practical objectives of the
118 S. Ct. at 2290; Ellerth, 118 S. Ct. at 2269.
21 Ellerth, 118
S. Ct. at 2269.
22 Ellerth, 118
S. Ct. at 2269.
118 S. Ct. at 2280. For a more detailed discussion of the harassers' job responsibilities,
see Faragher, 864 F. Supp. 1552, 1563 (S.D. Fla. 1994).
24 See Grozdanich
v. Leisure Hills Health Center, 25 F. Supp.2d 953, 973 (D. Minn. 1998) ("it is
evident that the Supreme Court views the term 'supervisor' as more expansive than as
merely including those employees whose opinions are dispositive on hiring, firing, and
promotion"; thus, "charge nurse" who had authority to control plaintiff's
daily activities and recommend discipline qualified as "supervisor" and
therefore rendered employer vicariously liable under Title VII for his harassment of
plaintiff, subject to affirmative defense).
25 See Ellerth,
118 S. Ct. at 2268 ("If, in the unusual case, it is alleged there is a false
impression that the actor was a supervisor, when he in fact was not, the victim's mistaken
conclusion must be a reasonable one."); Llampallas v. Mini-Circuit Lab, Inc.,
163 F.3d 1236, 1247 (11th Cir. 1998) ("Although the employer may argue
that the employee had no actual authority to take the employment action against the
plaintiff, apparent authority serves just as well to impute liability to the employer for
the employee's action.").
26 Of course,
traditional principles of mitigation of damages apply in these cases, as well as all other
employment discrimination cases. See generally Ford Motor Co. v. EEOC, 458 U.S. 219
27 Ellerth, 118
S. Ct. at 2269; Faragher, 118 S. Ct. 2284-85. See also Durham Life
Insurance Co., v. Evans, 166 F.3d 139, 152 (3rd Cir. 1999) ("A supervisor can
only take a tangible adverse employment action because of the authority delegated by the
employer . . .and thus the employer is properly charged with the consequences of that
118 S. Ct. at 2268.
29 All listed criteria
are set forth in Ellerth, 118 S. Ct. at 2269.
30 All listed examples
are set forth in Ellerth and/or Faragher. See Ellerth, 118 S. Ct. at
2268 and 2270; Faragher, 118 S. Ct. at 2284, 2291, and 2293.
31 Other forms of
formal discipline would qualify as well, such as suspension. Any disciplinary action
undertaken as part of a program of progressive discipline is "tangible" because
it brings the employee one step closer to discharge.
32 The Commission
disagrees with the Fourth Circuit's conclusion in Reinhold v. Commonwealth of Virginia,
151 F.3d 172 (4th Cir. 1998), that the plaintiff was not subjected to a
tangible employment action where the harassing supervisor "dramatically increased her
workload," Reinhold, 947 F. Supp. 919, 923 (E.D Va. 1996), denied her the
opportunity to attend a professional conference, required her to monitor and discipline a
co-worker, and generally gave her undesirable assignments. The Fourth Circuit ruled that
the plaintiff had not been subjected to a tangible employment action because she had not
"experienced a change in her employment status akin to a demotion or a reassignment
entailing significantly different job responsibilities." 151 F.3d at 175. It is the
Commission's view that the Fourth Circuit misconstrued Faragher and Ellerth.
While minor changes in work assignments would not rise to the level of tangible job harm,
the actions of the supervisor in Reinhold were substantial enough to significantly
alter the plaintiff's employment status.
33 See Durham,
166 F.3d at 152-53 (assigning insurance salesperson heavy load of inactive policies, which
had a severe negative impact on her earnings, and depriving her of her private office and
secretary, were tangible employment actions); Bryson v. Chicago State University,
96 F.3d 912, 917 (7th Cir. 1996) ("Depriving someone of the building
blocks for . . . a promotion . . . is just as serious as depriving her of the job
34 See Flaherty v.
Gas Research Institute, 31 F.3d 451, 457 (7th Cir. 1994) (change in
reporting relationship requiring plaintiff to report to former subordinate, while maybe
bruising plaintiff's ego, did not affect his salary, benefits, and level of responsibility
and therefore could not be challenged in ADEA claim), cited in Ellerth, 118 S. Ct.
35 See Crady v.
Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.
1993) ("A materially adverse change might be indicated by a termination of
employment, a demotion evidenced by a decrease in wage or salary, a less distinguished
title, a material loss of benefits, significantly diminished material responsibilities, or
other indices that might be unique to the particular situation."), quoted in
Ellerth, 118 S. Ct. at 2268-69.
36 See Nichols
v. Frank, 42 F.3d 503, 512-13 (9th Cir. 1994) (employer vicariously liable
where its supervisor granted plaintiff's leave requests based on her submission to sexual
conduct), cited in Faragher, 118 S. Ct. at 2285.
37 See Ellerth,
118 S. Ct. at 2268 and Faragher, 118 S. Ct. at 2284 (listed examples of tangible
employment actions that included both positive and negative job decisions: hiring and
firing; promotion and failure to promote).
38 The link could be
established even if the harasser was not the ultimate decision maker. See, e.g., Shager
v Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (noting that committee
rather than the supervisor fired plaintiff, but employer was still liable because
committee functioned as supervisor's "cat's paw"), cited in Ellerth, 118
S. Ct. at 2269.
163 F.3d at 1247.
40 Ellerth, 118
S. Ct. at 2270 ("[n]o affirmative defense is available . . . when the supervisor's
harassment culminates in a tangible employment action . . ."); Faragher, 118
S. Ct. at 2293 (same). See also Durham, 166 F.3d at 154 ("When harassment
becomes adverse employment action, the employer loses the affirmative defense, even if it
might have been available before."); Lissau v. Southern Food Services, Inc.,
159 F.3d 177, 184 (4th Cir. 1998) (the affirmative defense "is not
available in a hostile work environment case when the supervisor takes a tangible
employment action against the employee as part of the harassment") (Michael, J.,
41 Ellerth, 118
S. Ct. at 2265. Even if the preceding acts were not severe or pervasive, they still may be
relevant evidence in determining whether the tangible employment action was
42 See Lissau
v. Southern Food Service, Inc., 159 F.3d at 182 (if plaintiff could not prove that her
discharge resulted from her refusal to submit to her supervisor's sexual harassment, then
the defendant could advance the affirmative defense); Newton v. Caldwell Laboratories,
156 F.3d 880, 883 (8th Cir. 1998) (plaintiff failed to prove that her rejection
of her supervisor's sexual advances was the reason that her request for a transfer was
denied and that she was discharged; her claim was therefore categorized as one of hostile
environment harassment); Fierro v. Saks Fifth Avenue, 13 F. Supp.2d 481, 491
(S.D.N.Y. 1998) (plaintiff claimed that his discharge resulted from national origin
harassment but court found that he was discharged because of embezzlement; thus, employer
could raise affirmative defense as to the harassment preceding the discharge).
43 See Faragher,
118 S. Ct. at 2292 ("If the victim could have avoided harm, no liability should be
found against the employer who had taken reasonable care.").
44 See, e.g., EEOC
v. SBS Transit, Inc., No. 97-4164, 1998 WL 903833 at *1 (6th Cir. Dec. 18,
1998) (unpublished) (lower court erred when it reasoned that employer liability for sexual
harassment is negated if the employer responds adequately and effectively once it has
notice of the supervisor's harassment; that standard conflicts with affirmative defense
which requires proof that employer "took reasonable care to prevent and
correct promptly any sexually harassing behavior and that the plaintiff employee
unreasonably failed to take advantage of preventative or corrective opportunities provided
by the employer").
45 Ellerth, 118
S. Ct. at 2270.
46 See Indest v.
Freeman Decorating, Inc., 168 F.3d 795, 803 (5th Cir. 1999) ("when an
employer satisfies the first element of the Supreme Court's affirmative defense, it will
likely forestall its own vicarious liability for a supervisor's discriminatory conduct by
nipping such behavior in the bud") (Wiener, J., concurring in Indest, 164 F.3d
258 (5th Cir. 1999)). The Commission agrees with Judge Wiener's concurrence in Indest
that the court in that case dismissed the plaintiff's claims on an erroneous basis. The
plaintiff alleged that her supervisor made five crude sexual comments or gestures to her
during a week-long convention. She reported the incidents to appropriate management
officials who investigated the matter and meted out appropriate discipline. No further
incidents of harassment occurred. The court noted that it was "difficult to
conclude" that the conduct to which the plaintiff was briefly subjected created an
unlawful hostile environment. Nevertheless, the court went on to consider liability. It
stated that Ellerth and Faragher do not apply where the plaintiff quickly
resorted to the employer's grievance procedure and the employer took prompt remedial
action. In such a case, according to the court, the employer's quick response exempts it
from liability. The Commission agrees with Judge Wiener that Ellerth and Faragher
do control the analysis in such cases, and that an employee's prompt complaint to
management forecloses the employer from proving the affirmative defense. However, as Judge
Wiener pointed out, an employer's quick remedial action will often thwart the creation of
an unlawful hostile environment, rendering any consideration of employer liability
47 See Greene v.
Dalton, 164 F.3d 671, 674 (D.C. Cir. 1999) (in order for defendant to avoid all
liability for sexual harassment leading to rape of plaintiff "it must show not merely
that [the plaintiff] inexcusably delayed reporting the alleged rape . . . but that, as a
matter of law, a reasonable person in [her] place would have come forward early enough to
prevent [the] harassment from becoming 'severe or pervasive'").
48 Ellerth, 118
S. Ct. at 2267.
49 Under this same
principle, it is the Commission's position that an employer is liable for punitive damages
if its supervisor commits unlawful harassment or other discriminatory conduct with malice
or with reckless indifference to the employee's federally protected rights. (The Supreme
Court will determine the standard for awarding punitive damages in Kolstad v. American
Dental Association,119 S. Ct. 401 (1998) (granting certiorari).) The test for
imposition of punitive damages is the mental state of the harasser, not of higher-level
officials. This approach furthers the remedial and deterrent objectives of the
anti-discrimination statutes, and is consistent with the vicarious liability standard set
forth in Faragher and Ellerth.
50 Even if higher
management proves that evidence it discovered after-the-fact would have justified the
supervisor's action, such evidence can only limit remedies, not eliminate liability. McKennon
v. Nashville Banner Publishing Co., 513 U.S. 352, 360-62 (1995).
51 See Faragher,
118 S. Ct. at 2293, and Ellerth, 118 S. Ct. at 2270 (affirmative defense operates
either to eliminate liability or limit damages).
52 See Faragher,
118 S. Ct. at 2292 ("if damages could reasonably have been mitigated no award against
a liable employer should reward a plaintiff for what her own efforts could have
53 See Section V(C)(3)
for a discussion of preventive and corrective care by small employers.
54 See Hurley v.
Atlantic City Police Dept., No. 96-5634, 96-5633, 96-5661, 96-5738, 1999 WL 150301 (3d
Cir. March 18, 1999) ("Ellerth and Faragher do not, as the defendants
seem to assume, focus mechanically on the formal existence of a sexual harassment policy,
allowing an absolute defense to a hostile work environment claim whenever the employer can
point to an anti- harassment policy of some sort"; defendant failed to prove
affirmative defense where it issued written policies without enforcing them, painted over
offensive graffiti every few months only to see it go up again in minutes, and failed to
investigate sexual harassment as it investigated and punished other forms of misconduct.).
55 See Dees v.
Johnson Controls World Services, Inc., 168 F.3d 417, 422 (11th Cir. 1999)
(employer can be held liable despite its immediate and appropriate corrective action in
response to harassment complaint if it had knowledge of the harassment prior to the
complaint and took no corrective action).
118 S. Ct. at 2270.
57 A union grievance
and arbitration system does not fulfill this obligation. Decision making under such a
system addresses the collective interests of bargaining unit members, while decision
making under an internal harassment complaint process should focus on the individual
complainant's rights under the employer's anti-harassment policy.
An arbitration, mediation, or other alternative dispute
resolution process also does not fulfill the employer's duty of due care. The employer
cannot discharge its responsibility to investigate complaints of harassment and undertake
corrective measures by providing employees with a dispute resolution process. For further
discussion of the impact of such procedures on the affirmative defense, see Section
Finally, a federal agency's formal, internal EEO complaint
process does not, by itself, fulfill its obligation to exercise reasonable care. That
process only addresses complaints of violations of the federal EEO laws, while the Court,
in Ellerth, made clear that an employer should encourage employees "to report
harassing conduct before it becomes severe or pervasive." Ellerth, 118 S. Ct.
at 2270. Furthermore, the EEO process is designed to assess whether the agency is liable
for unlawful discrimination and does not necessarily fulfill the agency's obligation to
undertake immediate and appropriate corrective action.
58 Although the
affirmative defense does not apply in cases of harassment by co-workers or non-employees,
an employer cannot claim lack of knowledge as a defense to such harassment if it did not
make clear to employees that they can bring such misconduct to the attention of management
and that such complaints will be addressed. See Perry v. Ethan Allen, 115 F.3d 143,
149 (2d Cir. 1997) ("When harassment is perpetrated by the plaintiff's coworkers, an
employer will be liable if the plaintiff demonstrates that 'the employer either provided
no reasonable avenue for complaint or knew of the harassment but did nothing about
it'"), cited in Faragher, 118 S. Ct. at 2289. Furthermore, an employer is
liable for harassment by a co-worker or non-employer if management knew or should have
known of the misconduct, unless the employer can show that it took immediate and
appropriate corrective action. 29 C.F.R. § 1604.11(d). Therefore, the employer should
have a mechanism for investigating such allegations and undertaking corrective action,
59 Surveys have shown
that a common reason for failure to report harassment to management is fear of
retaliation. See, e.g., Louise F. Fitzgerald & Suzanne Swan, "Why Didn't
She Just Report Him? The Psychological and Legal Implications of Women's Responses to
Sexual Harassment," 51 Journal of Social Issues 117, 121-22 (1995) (citing
studies). Surveys also have shown that a significant proportion of harassment victims are
worse off after complaining. Id. at 123-24; see also Patricia A. Frazier,
"Overview of Sexual Harassment From the Behavioral Science Perspective," paper
presented at the American Bar Association National Institute on Sexual Harassment at B-17
(1998) (reviewing studies that show frequency of retaliation after victims confront their
harasser or filed formal complaints).
60 See Wilson v.
Tulsa Junior College, 164 F.3d 534, 541 (10th Cir. 1998) (complaint process
deficient where it permitted employees to bypass the harassing supervisor by complaining
to director of personnel services, but the director was inaccessible due to hours of duty
and location in separate facility).
118 S. Ct. at 2293 (in holding as matter of law that City did not exercise reasonable care
to prevent the supervisors' harassment, Court took note of fact that City's policy
"did not include any assurance that the harassing supervisors could be bypassed in
registering complaints"); Meritor Savings Bank, FSB v. Vinson, 471 U.S. 57, 72
62 See Wilson,
164 F.3d at 541 (complaint procedure deficient because it only required supervisors to
report "formal" as opposed to "informal" complaints of harassment); Varner
v. National Super Markets Inc., 94 F.3d 1209, 1213 (8th Cir. 1996), cert
denied, 519 U.S. 1110 (1997) (complaint procedure is not effective if it does not
require supervisor with knowledge of harassment to report the information to those in
position to take appropriate action).
63 It is particularly
important for federal agencies to explain the statute of limitations for filing formal EEO
complaints, because the regulatory deadline is only 45 days and employees may otherwise
assume they can wait whatever length of time it takes for management to complete its
64 If an employer
actively misleads an employee into missing the deadline for filing a charge by dragging
out its investigation and assuring the employee that the harassment will be rectified,
then the employer would be "equitably estopped" from challenging the delay. See
Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363, 1368 (D.C. Cir. 1998)
("an employer's affirmatively misleading statements that a grievance will be resolved
in the employee's favor can establish an equitable estoppel"); Miranda v. B &
B Cash Grocery Store, Inc., 975 F.2d 1518, 1531 (11th Cir. 1992) (tolling
is appropriate where plaintiff was led by defendant to believe that the discriminatory
treatment would be rectified); Miller v. Beneficial Management Corp., 977 F.2d 834,
845 (3d Cir. 1992) (equitable tolling applies where employer's own acts or omission has
lulled the plaintiff into foregoing prompt attempt to vindicate his rights).
65 The sharing of
records about a harassment complaint with prospective employers of the complainant could
constitute unlawful retaliation. See Compliance Manual Section 8
("Retaliation), subsection II D (2), (BNA) 614:0005 (5/20/98).
66 One court has
suggested that it may be permissible to honor such a request, but that when the harassment
is severe, an employer cannot just stand by, even if requested to do so. Torres v.
Pisano, 116 F.3d 625 (2d Cir.), cert. denied, 118 S. Ct. 563(1997).
67 Employers may
hesitate to set up such a phone line due to concern that it may create a duty to
investigate anonymous complaints, even if based on mere rumor. To avoid any confusion as
to whether an anonymous complaint through such a phone line triggers an investigation, the
employer should make clear that the person who takes the calls is not a management
official and can only answer questions and provide information. An investigation will
proceed only if a complaint is made through the internal complaint process or if
management otherwise learns about alleged harassment.
68 See, e.g., Van
Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) (employer's response
prompt where it began investigation on the day that complaint was made, conducted
interviews within two days, and fired the harasser within ten days); Steiner v.
Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (employer's response to
complaints inadequate despite eventual discharge of harasser where it did not seriously
investigate or strongly reprimand supervisor until after plaintiff filed charge with state
FEP agency), cert. denied, 513 U.S. 1082 (1995); Saxton v. AT&T, 10 F.3d
526, 535 (7th Cir 1993) (investigation prompt where it was begun one day after
complaint and a detailed report was completed two weeks later); Nash v. Electrospace
Systems, Inc. 9 F.3d 401, 404 (5th Cir. 1993) (prompt investigation
completed within one week); Juarez v. Ameritech Mobile Communications, Inc., 957
F.2d 317, 319 (7th Cir. 1992) (adequate investigation completed within four
69 Management may be
reluctant to release information about specific disciplinary measures that it undertakes
against the harasser, due to concerns about potential defamation claims by the harasser.
However, many courts have recognized that limited disclosures of such information are
privileged. For cases addressing defenses to defamation claims arising out of alleged
harassment, see Duffy v. Leading Edge Products, 44 F.3d 308, 311 (5th
Cir. 1995) (qualified privilege applied to statements accusing plaintiff of harassment);
Garziano v. E.I. DuPont de Nemours & Co., 818 F.2d 380 (5th Cir.
1987) (qualified privilege protects employer's statements in bulletin to employees
concerning dismissal of alleged harasser); Stockley v. AT&T, 687 F. Supp. 764
(F. Supp. 764 (E.D.N.Y. 1988) (statements made in course of investigation into sexual
harassment charges protected by qualified privilege).
70 Mockler v
Multnomah County, 140 F.3d 808, 813 (9th Cir. 1998).
71 In some cases,
accused harassers who were subjected to discipline and subsequently exonerated have
claimed that the disciplinary action was discriminatory. No discrimination will be found
if the employer had a good faith belief that such action was warranted and there is no
evidence that it undertook less punitive measures against similarly situated employees
outside his or her protected class who were accused of harassment. In such circumstances,
the Commission will not find pretext based solely on an after-the-fact conclusion that the
disciplinary action was inappropriate. See Waggoner v. City of Garland Tex., 987
F.2d 1160, 1165 (5th Cir. 1993) (where accused harasser claims that
disciplinary action was discriminatory, "[t]he real issue is whether the employer
reasonably believed the employee's allegation [of harassment] and acted on it in good
faith, or to the contrary, the employer did not actually believe the co-employee's
allegation but instead used it as a pretext for an otherwise discriminatory
72 See Steiner v.
Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (employer
remedial action for sexual harassment by supervisor inadequate where it twice changed
plaintiff's shift to get her away from supervisor rather than change his shift or work
area), cert. denied, 513 U.S. 1082 (1995).
73 See Guess
v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990) ("a
remedial measure that makes the victim of sexual harassment worse off is ineffective per
74 An oral warning or
reprimand would be appropriate only if the misconduct was isolated and minor. If an
employer relies on oral warnings or reprimands to correct harassment, it will have
difficulty proving that it exercised reasonable care to prevent and correct such
75 See Varner,
94 F.3d at 1213 (complaint procedure is not effective if it does not require supervisor
with knowledge of harassment to report the information to those in position to take
appropriate action), cert denied, 117 S. Ct. 946 (1997); accord Wilson v.
Tulsa Junior College, 164 F.3d at 541.
76 See Wilson,
164 F.3d at 541 (complaint procedure deficient because it only required supervisors to
report "formal" as opposed to "informal" complaints of harassment).
77 See, e.g.,
Splunge v. Shoney's, Inc., 97 F.3d 488, 490 (11th Cir. 1996) (where
harassment of plaintiffs was so pervasive that higher management could be deemed to have
constructive knowledge of it, employer was obligated to undertake corrective action even
though plaintiffs did not register complaints); Fall v. Indiana Univ. Bd. of Trustees,
12 F. Supp.2d 870, 882 (N.D. Ind. 1998) (employer has constructive knowledge of harassment
by supervisors where it "was so broad in scope and so permeated the workplace that it
must have come to the attention of someone authorized to do something about it").
78 In Faragher,
the City lost the opportunity to establish the affirmative defense in part because
"its officials made no attempt to keep track of the conduct of supervisors." Faragher,
118 S. Ct. at 2293.
79 See subsections
V(C)(1)(e)(ii) and V(C)(2), above.
80 If the owner of the
business commits unlawful harassment, then the business will automatically be found liable
under the alter ego standard and no affirmative defense can be raised. See Section
118 S. Ct. at 2293.
118 S. Ct. at 2292 ("If the victim could have avoided harm, no liability should be
found against the employer who had taken reasonable care, and if damages could reasonably
have been mitigated no award against a liable employer should reward a plaintiff for what
her own efforts could have avoided.").
83 Ellerth, 118
S. Ct. at 2270; Faragher, 118 S. Ct. at 2293. See also Scrivner v. Socorro
Independent School District, 169 F.3d 969, 971 (5th Cir., 1999) (employer
established second prong of defense where harassment began during summer, plaintiff misled
investigators inquiring into anonymous complaint by denying that harassment occurred, and
plaintiff did not complain about the harassment until the following March).
84 The employee is not
required to have chosen "the course that events later show to have been the
best." Restatement (Second) of Torts § 918, comment c.
85 See Corcoran
v. Shoney's Colonial, Inc., 24 F. Supp.2d 601, 606 (W.D. Va. 1998) ("Though
unwanted sexual remarks have no place in the work environment, it is far from uncommon for
those subjected to such remarks to ignore them when they are first made.").
86 See Faragher,
118 S. Ct. at 2292 (defense established if plaintiff unreasonably failed to avail herself
of "a proven, effective mechanism for reporting and resolving complaints of sexual
harassment, available to the employee without undue risk or expense"). See also
Restatement (Second) of Torts § 918, comment c (tort victim "is not barred from full
recovery by the fact that it would have been reasonable for him to make expenditures or
subject himself to pain or risk; it is only when he is unreasonable in refusing or failing
to take action to prevent further loss that his damages are curtailed").
87 See n.59,
88 See Faragher,
118 S. Ct. at 2292 (employee should not recover for harm that could have been avoided by
utilizing a proven, effective complaint process that was available "without undue
risk or expense").
89 See Wilson,
164 F.3d at 541 (complaint process deficient where official who could take complaint was
inaccessible due to hours of duty and location in separate facility).
90 See Policy
Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a
Condition of Employment, EEOC Compliance Manual (BNA) N:3101 (7/10/97).
91 For a discussion of
defamation claims and the application of a qualified privilege to an employer's statements
about instances of harassment, see n.69, above.
92 See Watts v.
Kroger Company, 170 F.3d 505, 510 (5th Cir., 1999) (plaintiff made effort
"to avoid harm otherwise" where she filed a union grievance and did not utilize
the employer's harassment complaint process; both the employer and union procedures were
corrective mechanisms designed to avoid harm).
93 Both the staffing
firm and the client may be legally responsible, under the anti- discrimination statutes,
for undertaking corrective action. See Enforcement Guidance: Application of EEO
Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing
Firms, EEOC Compliance Manual (BNA) N:3317 (12/3/97).
94 See also Ellerth,
118 S. Ct. at 2267 (under agency principles an employer is indirectly liable "where
the agent's high rank in the company makes him or her the employer's alter ego"); Harrison
v. Eddy Potash, Inc., 158 F.3d 1371, 1376 (10th Cir. 1998) ("the
Supreme Court in Burlington acknowledged an employer can be held vicariously liable under
Title VII if the harassing employee's 'high rank in the company makes him or her the
employer's alter ego'").
118 S. Ct. at 2284.
96 The Court noted
that the standards for employer liability were not at issue in the case of Harris v.
Forklift Systems, 510 U.S. 17 (1993), because the harasser was the president of the
company. Faragher, 118 S. Ct. at 2284.
97 An individual who
has an ownership interest in an organization, receives compensation based on its profits,
and participates in managing the organization would qualify as an "owner" or
"partner." Serapion v. Martinez, 119 F.3d 982, 990 (1st Cir.
1997), cert. denied, 118 S. Ct. 690 (1998).