Sexual-Harassment Liability in 1998

Abstract

In June 1998 the U.S. Supreme Court issued three separate rulings regarding workplace sexual harassment. In an apparent victory for employers, the court ruled in one case that a victim must actually suffer a tangible loss (i.e., a demotion or unwelcome transfer) to establish a case for quid pro quo harassment. The court affirmed, moreover, that employers can absolve themselves of liability in hostile-environment cases by establishing a meaningful and effective policy against sexual harassment. Absent a meaningful policy, however, employers will be liable for a hostile environment created by supervisors. Thus, in another case, the court found an employer liable for workplace harassment because the employer pp. 14-21 failed to disseminate its existing policy and to follow its terms. Finally, in a same-sex harassment case, the court rejected the notion that egregious sexual harassment is per se unlawful, leaving open the possibility that a harasser who treats men and women equally, no matter how badly, could be found not guilty of unlawful behavior. Still, the court made it clear that an employer's best defense against supervisors' sexual-harassment behavior is an effective prevention policy. Consequently, employers should draft a policy that (1) defines sexual harassment; (2) states the company prohibits such conduct; (3) provides a clear procedure for submitting claims, including the names of individuals involved in the resolution process; (4) states that those who complain or cooperate with an investigation will not be retaliated against; and (5) is disseminated to all new employees when they join the company, reissued to all employees each year, and posted in a conspicuous location in the workplace.