EEOC Issues Guidance on Vicarious Liability for Unlawful Harassment by Supervisors

On June 18, 1999, the Equal Employment Opportunity Commission (“EEOC”) issued guidance setting forth standards of liability for employers for unlawful harassment by supervisors under Title VII of the Civil Rights Act of 1964 and other fair employment laws (the “Guidance”). The Guidance implements two 1998 United States Supreme Court decisions, Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), which found that employers can be held vicariously liable for sexual harassment by supervisors.

In those cases, the Supreme Court ruled that an employer may be vicariously liable for acts of sexual harassment by a supervisor, subject to a two-pronged affirmative defense. The affirmative defense requires the employer to show:

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 or to avoid harm otherwise.

The Supreme Court made clear, however, that no affirmative defense is available when the supervisor’s harassment culminates in a tangible employment action, such as discharge. In other words, the defense applies only in cases of hostile environment harassment, not quid pro quo harassment. The Court further held that liability is automatic (regardless of the existence of a tangible employment action) where the harasser is of a sufficiently high rank, such as the president or owner of a company, to be considered the alter ego or proxy of an organization.

Although the Supreme Court rulings dealt specifically with sexual harassment, subsequent court decisions have broadened their application, and the EEOC’s interpretation also extends the liability standards to harassment based on other protected criteria such as race, national origin, age, or disability.

The EEOC adopted the Supreme Court’s formulation of the two-pronged affirmative defense to claims of supervisory harassment. With respect to the first prong, whether an employer met the “reasonable care” standard calls for a case-by-case analysis, but generally requires employers to establish, disseminate, and enforce an anti-harassment policy and complaint procedure, and to take other reasonable steps to prevent and correct harassing behavior. Although the EEOC stated that the existence of a comprehensive harassment policy is an important factor in determining whether this standard has been met, there are no “mandatory requirements” as to either the existence or content of such a policy. For example, small employers may be able to effectively prevent and correct harassment through informal means, while larger employers may have to institute more formal mechanisms. While the EEOC cautioned that there are no “safe harbors” for employers based on the written content of policies and procedures, it is “generally necessary for employers to establish, publicize, and enforce anti-harassment policies and complaint procedures.” Such policies and procedures should contain the following elements:

• Prohibition Against Harassment
• Protection Against Retaliation
• Effective Complaint Process
• Confidentiality (to the extent possible: an employer cannot guarantee complete confidentiality because it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses)
• Effective Investigative Process
• Assurances of Immediate and Appropriate Corrective Measures

The Guidance further provided that an employer’s responsibility to exercise reasonable care to prevent and correct harassment includes other measures, such as: instructing all supervisors and managers to address or report to appropriate officials all complaints of harassment; addressing and correcting clear instances of harassment even where no internal complaint is filed; periodically training supervisors and managers to insure that they understand their responsibilities under the employer’s anti-harassment policy; screening applicants for supervisory positions to discover any past record of harassment; and keeping records of all complaints of harassment.

While the first prong of an employer’s affirmative defense concerns the employer’s duty of reasonable case, the second prong assesses the employee’s duty. To establish the defense, the employer must show that the aggrieved employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Thus, an employer who exercised reasonable care (based on the analysis summarized above) is not liable for unlawful harassment if the aggrieved employee reasonably could have avoided all of the actionable harm. If some but not all of the harm could have been avoided, then a damage award will be mitigated accordingly.

In some cases, the second prong of the defense will be established by a showing that the employee failed to assert a complaint under the employer’s harassment policy and that the employee acted unreasonably in failing to do so. Even if an internal complaint is asserted, however, the employer may still be able to assert the defense if the employee provides no information to support the allegations of harassment, provides untruthful information, or otherwise fails to cooperate in the investigation; such a complaint will not qualify as a reasonable effort on the part of the employee to avoid harm. If an employee unreasonably delays filing a complaint and the timely filing would have reduced the harm, then the affirmative defense may operate to reduce damages.

As noted above, an employee’s failure to invoke the employer’s harassment complaint procedure will establish the second prong of the affirmative defense only if the employer shows that the employee “unreasonably” failed to pursue that procedure. The EEOC identified five circumstances under which an aggrieved employee’s failure to complain might be considered reasonable. Where an employee relies on one or more of the potential justifications for failing to complain, the employer will carry the burden of proving that the belief or perception underlying the employee’s failure to complain was, in fact, unreasonable.

First, the EEOC observed that an employee’s delay in making a complaint to management is not necessarily unreasonable, concluding that “an employee should not necessarily be expected to complain to management immediately after the first or second incident of relatively minor harassment.” Under such circumstances, an employee might reasonably ignore such incidents or attempt to correct the problem on his or her own.

Second, the EEOC noted that an employee’s failure to complain about harassment might be deemed reasonable where the complaint mechanism “entailed a risk of retaliation.” 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 harassment.

Third, the EEOC suggested that a failure to invoke a complaint procedure might be reasonable where “there were obstacles to complaints” under the procedure. The EEOC noted, for example, that a failure to complain might be excused where the complaint process entailed “undue expense” or “inaccessible points of contact.”

Fourth, the EEOC stated that an employee might be considered to have acted reasonably by failing to complain where the “complaint mechanism was not effective.” As an example, the EEOC observed that an employee would have a reasonable basis to conclude that the complaint procedure was ineffective if it required the employee to complain initially to the harassing supervisor.

Finally, the EEOC suggested that an employee’s failure to invoke the employer’s sexual harassment policy might not bar the claim where the employee undertook other efforts to avoid harm, such as “a prompt complaint by the employee to the EEOC or a state fair employment practices agency while the harassment is ongoing.”

The EEOC’s Guidelines strongly underscore the message of the Supreme Court’s decisions. That is, it is now more critical than ever for all employers to adopt, disseminate, and enforce harassment-free workplace policies, and to ensure that every harassment complaint is addressed promptly and effectively.