Employment Law

The U.S. Supreme Court recently held that employers are subject to vicarious liability for unlawful harassment by supervisors. Burlington Industries, Inc. v. Ellerth, 118 S Ct. 2257 (1998). Vicarious liability means that an employer may be held responsible for the actions/discrimination of his or her employees without regard to the employers knowledge or participation. The EEOC recently issued interpretive guidance on the standards discussed in the case. The interpretive guidance is generally accepted as authoritative on the issues and provide mandatory guidance for the agencies and persuasive guidance for the Courts. The EEOC describes its overriding considerations as follows 1) an employer is responsible for the acts of its supervisors, and 2) employers should be encouraged to prevent harassment and the employees should be encouraged to avoid or limit the harm from harassment.

The EEOC further stated that the vicarious liability rules applies to all forms of harassment not just sex but also based upon race, color, sex, religion, national origin, protected activity, age, or disability. "Thus employers should establish anti-harassment policies and complaint procedures covering all forms of unlawful harassment."

Employers may avoid liability under some circumstances if a) The employer exercised reasonable care to prevent and correct promptly any harassing behavior, and b) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise.

The EEOC recommends the following to meet the standard:

1. POLICY & COMPLAINT PROCEDURE: It is generally necessary for employers to establish, publicize and enforce anti-harassment policies and complaint procedures. The policy must meet certain requirements explained in the guidance.

• A clear explanation of prohibited conduct
• Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation.
• A clearly described compliance process that provides accessible avenues of complaint.
• Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.
• A complaint process that provides a prompt, through and impartial investigation; and finally
• Assurance that the employer will take immediate and appropriate corrective action when determined that harassment has occurred.

2. OTHER PREVENTATIVE & CORRECTIVE MEASURES: These are equally as important to establish an employers compliance with the law. Regular education of employees and supervisors should take place at least annually. Supervisors and employers must understand their duties. A supervisor must take appropriate action and report complaints. Employees must understand their responsibilities to report any suspected violation. All must understand the legal requirements prohibiting discrimination that need to be complied with. Anderson Law Office can provide this training to employers and employees. Call for more information.

Punitive Damages: The clear trend in the law is to allow employers who attempt compliance and take reasonable measures to prevent discrimination an opportunity to reduce or eliminate liability. This is based upon the principle that the discrimination laws should serve to prevent harm by encouraging employers to adopt policies and take actions that have such an effect. The U.S. Supreme Court in a recent decision upheld the generally accepted standard for punitive damages allowing such an award upon a finding of reckless indifference and malice. This can be inferred from conduct alone. Kolstad v. American Dental Association U.S. 1999 WL 407481 (1999). The Court modified the standard in the area of Vicarious Liability. Employers who engage in good faith efforts to comply with Title VII would not be held liable for the unlawful actions of employees. Again good faith efforts standard in consideration of the prior relevant case law and the interpretive guidance from the EEOC would be consistent with the standards and practices set forth above. Therefore, specific and defined policies and practices must be adopted to protect against Punitive Damage awards.