As many employers are aware, this summer the United States Supreme Court, in the cases of Faragher v. City of Boca Raton, and Burlington Industries, Inc. v. Ellerth, articulated a new standard governing an employer's liability for the sexually harassing conduct of its supervisors. The Court held that an employer is always vicariously liable for sexual harassment perpetrated by its supervisors, but that an employer may raise an affirmative defense in cases where no tangible employment action has been taken against the employee. The affirmative defense has two elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise.

Recent decisions interpreting Faragher and Burlington have indicated that unless an employer makes its employees aware of its harassment policy, it will not be able to avoid liability for supervisory harassment. In the recent case of Harrison v. Eddy Potash, Inc., a federal appeals court rejected an employer's argument that it should not be liable for harassment perpetrated by its supervisor because it had implemented a sexual harassment policy which instructed employees where to bring complaints of harassment, and the employee had not utilized the policy to report the harassment. The court noted that the evidence indicated that the plaintiff had not been made aware of the policy and therefore "the evidence presented appears to pose serious questions concerning the reasonableness of [the employer's] conduct in preventing sexual harassment in the workplace."

Similarly, in Booker v. Budget Rent-A-Car Systems, a federal trial court in Tennessee applied the new standard to a racial harassment case. The Court found that the employer could not prove the affirmative defense as it had no proof it ever distributed its harassment policy or trained management with respect to racial harassment. Thus, the employer could not establish it took reasonable care to prevent harassment, and also, it failed to take prompt corrective action despite receiving notice on three occasions of the conduct.

These decisions reflect the standards employers must meet to avoid liability for supervisory harassment and reinforce the need for employers to implement and distribute an anti-harassment policy which instructs employees how to complain to the company of harassment. Employers must train supervisors in detecting and reporting harassment, sexual or otherwise. For assistance in drafting a policy or developing an anti-harassment training program for supervisors and staff, please feel free to contact us by telephone or e-mail as set forth below.

The information provided herein is for general guidance on matters of interest only. While every effort has been made to ensure the information provided herein is accurate and timely, no decision should be made or action taken on the basis of this information without first consulting an Epstein Becker & Green professional

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