Hostile Work Environment Harassment
usually liable if it knew about but ignored situation.
In hostile work
environment cases, company liability depends on who created the
abusive environment-a supervisor, a coworker, or a third party such as
The vast majority of
courts have decided that an employer is liable for hostile work
environment harassment by supervisors only if it:
actually knew of the
could have learned
of the harassment, and
failed to take
immediate and appropriate action to correct it.
Strict liability, as
exists in quid pro quo cases, would not make sense in hostile
environment cases because harassment is normally outside the scope of
the authority granted by the employer.
Knowledge of Harassment
A court will find that a
company knew of harassment where, for example,
a person in
authority directly observes the harassment,
the victim lodges an
internal complaint with someone in authority,
the victim files a
charge with the EEOC or a local fair employment agency or a union,
the harassment is
widely and openly practiced.
A court will find that a
company should have learned of the harassment where, for example,
the harassment was
complaints that were ignored, or
enough conduct of a sexual nature to indicate that they should
undertake further inquiry.
A Note About Company
A court will be more
likely to hold a company liable for hostile work environment
harassment if the company fails to enact a sexual harassment policy or
enacts an ineffective policy or fails to enforce its policy. Sexual
harassment policies often are part of a company's broad-based
On the other hand, if
the company has a policy that clearly prohibits sexual harassment, and
harassment occurs but is not blatant, a victim who fails to use the
internal complaint procedure may have a hard time proving that the
company should have been aware of the harassment.
Companies have been
charged with knowledge of harassment where
foremen on the shop
floor could easily see that male workers posted sexual graffiti
and pinups in their work areas, and they often overheard sexual
overtures being made to female workers;
a company responded
to a complaint by saying "boys will be boys"; and
it was known
throughout the company that an interviewer was in the habit of
asking applicants inappropriate sexual questions, questioning
coworkers about their sexual practices, and offering to pull down
his pants for them if offered money.
court refused to charge a company with knowledge of harassment where
the victim authorized a coworker to draft a letter notifying the
company, but quit before the letter was sent.
Liability occurs in
hostile environment cases when a company not only knows of the
harassment but also fails to take action to end it. The company must
act promptly, and the action it takes must be effective. An effective
remedy is one that will stop the harassment and prevent it from
recurring. It is important to note that, in hostile environment
cases, if the company takes appropriate and effective remedial action,
then it can avoid liability, even if sexual harassment did occur.
company was not liable where it got a harassment complaint,
investigated it in three days, and then transferred the harasser.
manager witnessed verbal harassment. He spoke to the woman who had
been the target of the remarks and then made sure that the coworkers
who had made the comments were put on warning.
company received a complaint of severe verbal harassment, but the
offender was merely sent to counseling; he was not disciplined in any
way. Not surprisingly, the harassment recurred. The company had not
devised an effective remedy.
Case Study: Effective
Carol was a proofreader
for a publishing company. She complained that she was harassed by her
supervisor, William, for several months. Carol alleged that she had
been subjected to unceasing sexually explicit jokes and remarks and
that William ogled her.
The company had a sexual
harassment policy and an open door policy intended to allow employees
to raise complaints about supervisors without fear of retaliation.
Carol talked to the head of human resources about her problems with
William, but no investigation took place, and no action was taken
A while later, William
gave Carol the option of being laid off or competing for a lower-level
position that also reported to him. Carol chose to be laid off. She
then complained to the company's attorney, who investigated her claim.
As a result of this investigation, William was suspended for two weeks
without pay and warned that any future misconduct could lead to his
termination. The company did not offer to reinstate Carol.
The court ruled that,
although the company may not have conducted a very timely
investigation, it had taken appropriate remedial action under the
circumstances. Carol should have made a renewed request for an
investigation before she left her job.
A Stricter Standard in
Hostile Work Environment Cases?
A small minority of
courts takes the position that employers can be strictly liable, even
in hostile environment cases, if the harasser is at a senior level and
uses his authority to carry out the harassment. They believe that
because supervisors, especially those at high levels, can wield power
against subordinates and that power was given them by the employer,
the employer should be liable when they exercise their power
Company Notice and
A marketing assistant at
a textile company claimed that she was harassed by the vice president
for sales and marketing. The harassment began when she first
interviewed for the job, when he ogled her and asked her about her
sexual relationship with her husband. After she was hired, business
calls that she made to the VP could not proceed until she had
described in detail what she was wearing. He made comments about her
breasts and legs and tried to touch and grab her. He told her that he
could make her job "very hard or very easy."
The marketing assistant
complained about the VP to other employees, but, because she was
afraid of him, she never filed a formal internal complaint. She then
quit her job a little over a year after she had been hired. It was not
until three weeks after she quit that she told the company that she
had left because of sexual harassment by the VP.
The company's defense to
her sexual harassment claim was that, because the plaintiff had not
used its internal complaint procedure, it had no notice of the hostile
work environment and could not be held liable. The company also argued
that it could not be liable because the VP's acts were outside the
scope of his employment. Although a lower court agreed with these
arguments, they were rejected on appeal.
On appeal, the court
ruled that the assistant had both hostile work environment and quid
pro quo sexual harassment claims. It said that a company's liability
is determined by federal law and not by its internal procedures. The
evidence suggested that the VP had taken advantage of his status when
he harassed the assistant. Certainly, he had made it clear to her that
he could influence her success at the company. Much of his conduct
took place on company time. For these reasons, a jury could find that
he was acting within the scope of his employment when he harassed the
plaintiff. The company could not escape liability because it had not
authorized or condoned his acts.
On the issue of whether
the company was on notice of the harassment, the court ruled that,
when an employee's authority, granted by the company, helps him carry
out the harassment, then the company may be liable even if it was not
formally put on notice of the harassment. This being the case, the
company could not avoid liability because the assistant had not lodged
an internal complaint before bringing suit.
In another case, a
female correction officer for a sheriff's department was harassed by
one of her fellow workers, who told her that he had a "big
dick," and put a zucchini between his legs and poked her
buttocks. A few days after this happened, the woman requested a
transfer, citing a "personality conflict." Her supervisor,
assuming that she meant a dispute she had previously had with a female
officer, denied the request.
The harassment continued
and came to include touching, which injured the correction officer.
She then gave her supervisor a detailed written complaint about the
harassment. Her complaint was investigated, and it was decided that no
disciplinary action would be taken against the coworker. The
correction officer left her job and went on disability leave. She sued
the company for sexual harassment and brought criminal assault charges
against her coworker. He was found guilty of sexual assault.
The correction officer
lost her sexual harassment charge against the sheriff's department.
The court said that her initial complaint had not been sufficient to
notify her supervisor that she was being sexually harassed. She did
not reveal that she had been harassed until after she had been
assaulted. So, the department had no opportunity to try to protect
her. The court said that, if employers were liable in these
circumstances, this would lead to the illogical result that they would
be forced to investigate every request for a transfer based on a
personality conflict as a potential sexual harassment case.