Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to discriminate against an individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In 1986, the Supreme Court confirmed that among other forms of unlawful discrimination, Title VII outlaws sexual harassment in the workplace.

In Meritor Savings Bank v. Vinson, the Supreme Court described sexual harassment to mean “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” 477 U.S. 57, 65 (1986). The Court recognized two forms of sexual harassment: (1) severe or pervasive harassment that creates a hostile work environment; and (2) quid pro quo harassment that conditions favorable (or unfavorable) employment decisions on a victim’s submission to (or rejection of) unwelcome sexual advances.

Whether an employer will be liable for an employee’s harassment depends on the position of the harasser. Is the harasser merely a co-worker of the victim? Or is the harasser the victim’s supervisor?

If the harasser is the victim’s co-worker, then the employer will be liable if its negligence led to the creation or continuation of a hostile work environment. An employee has a right to a workplace free from sexual harassment. Evidence that an employer did not monitor the workplace, failed to respond to complaints of harassment, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed is relevant when determining whether an employer was negligent in failing to prevent harassment.

If the harasser is the victim’s supervisor, then the employer may well be strictly liable for the supervisor’s harassment regardless of whether the employer was negligent. This is true when a supervisor’s harassment culminates in a tangible employment action affecting the victim, such as discharge, demotion, or undesirable reassignment.

When a supervisor’s harassment, however, does not culminate in a tangible employment action but does create a hostile work environment, then the employer may have a defense. The employer can mitigate or avoid liability for a hostile environment created by a supervisor if it can prove that (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the victim unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

An employer, therefore, must take steps to prevent harassment in the workplace. The employer should create and disseminate a written policy prohibiting sexual harassment. The policy should broadly define sexual harassment, providing examples, and ban it. The policy should state that submission to sexual harassment cannot be made a term or condition of employment. The policy should warn that a violation is a disciplinary offense and reserve the right to terminate offenders.

The employer should also have a complaint procedure in place that strongly encourages employees to report harassment they have either suffered or observed. Employees should be made aware that retaliation for reporting harassment is forbidden. The employer’s complaint procedure should identify several individuals who are authorized to receive complaints. By identifying several individuals, the employer avoids a potential situation where the victim is required to report harassment directly to a harassing supervisor. The employer should promptly investigate reports of harassment through an established, formal investigative process.

If you have questions or need advice concerning your anti-harassment policy and complaint procedure, Astrachan Gunst Thomas can help. Please call Chris Lyon at 410-783-3547 (clyon@agtlawyers.com) or Elizabeth Harlan at 410-783-3528 (eharlan@agtlawyers.com).