Welcome to the EEO Exchange in web-based training form, entitled Supervisor Liability for Harassment. This session was originally presented as a live webinar on January 16, 2019. This course will provide an overview of how employers are subject to liability for unlawful harassment by supervisors and managers. Understanding this legal concept will help promote equal opportunity and avoid liability. Let’s begin
The purpose of the EEO exchange is to create an online forum that promotes and encourages the exchange of EEO-related knowledge and information. We want to strengthen the knowledge base of the commonwealth’s EEO community and promote collaboration, understanding and idea generation.
The objectives for today’s course are to: Review the Equal Employment Opportunity Commission’s (EEOC’s) “Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors”; establish who is a supervisor under the law and how recent court decisions have defined this; review the defenses available to employers in harassment cases; and, identify best practices used to investigate harassment complaints and prevent harassment within workplaces.
Why is it important for us to understand this topic? Recent stories in the news show us that harassment complaints in workplaces have dramatically increased, especially against powerful people in positions of authority. These incidents of sexual and other forms of harassment have caused embarrassing headlines, resulted in huge amounts of liability, and created workplaces where employees are demoralized and feel threatened. Some victims of sexual and other forms of harassment in the workplace suffered in silence for prolonged periods; however, recently many began telling their stories, resulting in what is known as the “Me Too” movement. EEO professionals in the commonwealth have a responsibility to ensure that all victims of harassment can come forward without fear of retaliation and reprisal. All commonwealth employees deserve to work in a safe, bias-free environment, free of discrimination and harassment.
The EEOC has released official guidance titled, “Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors”, which explains when an employer is liable for the actions of its managers and supervisors. The link to this guidance can be found in the Resources tab of this course. You may be wondering: what does vicarious liability mean? In the area of employment law, vicarious liability means that the employer is responsible for the actions of its managers and supervisors when they act as agents of the employer. This includes acts of harassment by supervisors toward employees. The EEOC Guidance explains this standard of liability, which is based on two principles: First, an employer is responsible for the acts of its supervisors. Second, employers should be encouraged to take measures to prevent harassment in the workplace and, in turn, employees should be encouraged to report incidents of harassment when they occur. Before we look at the two cases that established the standard of liability for harassment by a supervisor, let's review who qualifies as supervisor.
Who qualifies as a supervisor? In 2013, the Supreme Court clarified this question in Vance v. Ball State University. The Supreme Court held that an employer may be held vicariously liable for a supervisor's unlawful harassment only when the employer has empowered that person to take tangible employment actions against the victim. In this case, the plaintiff alleged that she was harassed by a “team leader” who distributed work assignments to her and her peers. The court ruled that a supervisor must be one who is able to have authority over an employee, including but not limited to the matters of hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Because the team leader did not have this sort of authority over the employee, the court ruled that the “team leader” was not a “supervisor”. Now let’s review the two cases that established the standard of liability for supervisor harassment.
In 1998, two Supreme Court decisions established the standards of liability for an employer when its supervisors commit unlawful acts of harassment under Title VII. These are Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. Here’s some brief background on these cases. Beth Ann Faragher was a lifeguard for the City of Boca Raton, FL who was subjected to constant physical and verbal sexual harassment by her male supervisors. They also threatened to not promote her if she refused their sexual advances. The City had an anti-harassment policy, but Ms. Faragher never received a copy of it, so she was unaware of how to report the harassment. After a period of time, she resigned due to the ongoing harassment. In the second case, Kimberly Ellerth was a salesperson for Burlington Industries who was subjected to constant sexual remarks by a mid-level manager. Though this manager was not her direct supervisor, Ellerth worked in close proximity to this manager on a daily basis. The company did have a policy prohibiting sexual harassment with a reporting procedure, which Ellerth did receive. Ultimately, Ellerth resigned her position and subsequently wrote a letter reporting the harassment.
In the Faragher case, the court ruled that an employer is always responsible for harassment by its supervisors that results in a tangible employment action and thus no defense is available. A tangible employment action would include things such as; termination, demotion, an unsatisfactory or needs improvement EPR, negative work assignments, failure to promote, and even actions such as denial of participation in training programs, rigid enforcement of workplace rules (such as leave), and loss of resources necessary for the employee to do his or her job. To emphasize, if the harassment by the supervisor results in a tangible employment action, the employer is liable. Next up, we’ll find out what defense the employer has when a supervisor commits harassment but there is no tangible employment action.
In the Ellerth case, the Supreme Court ruled that if the harassment by the supervisor does not result in a tangible employment action, the employer may avoid liability or limit its damages with this affirmative defense: First, the employer would need to show it exercised reasonable care to prevent and promptly correct any harassing behavior. The employer can do this by having a policy, a reporting procedure, training its staff, and investigating and resolving incidents of harassment when they occur. Second, the employee must fail to take advantage of any preventative or corrective opportunities provided by the employer. For example, if the employee was aware of the policy and the reporting procedures but failed to report it. This affirmative defense is known as the “Faragher/Ellerth” defense, because it was shaped by both cases.
It’s also important to note, that while the Faragher and Ellerth cases involved matters of sexual harassment, the EEOC’s Guidance makes it very clear that the standards of supervisor liability apply to all forms of harassment prohibited under Title VII. This would include, for example, harassment based on race, national origin, or any other protected class under Title VII. All commonwealth agencies under the governor’s jurisdiction are mandated to follow Management Directive 410.10, Guidelines for Investigating and Resolving Discrimination Complaints, and Management Directive 505.30, Prohibition of Sexual Harassment in Commonwealth Work Settings. Both policies include guidelines for investigating complaints of harassment. Under both policies, harassment by managers and supervisors is explicitly prohibited. If a supervisor is accused of harassment, he or she must be interviewed during an investigation. The Office of Administration’s Bureau of Equal Employment Opportunity recommends that the manager or supervisor be interviewed last, after the complainant and all witnesses have been interviewed. Both MD 410.10 and MD 505.30 also have anti-retaliation provisions, which state that retaliation against a person for making a complaint or cooperating in an investigation is prohibited and will be cause for appropriate disciplinary action. All people who are interviewed in a harassment investigation must be informed of these anti-retaliation provisions. Let’s talk about some scenarios.
Atron and John are two African American males who were hired by Agency T as probationary employees. They were the only persons of color in the division where they worked. During their probationary period, notes with racial jokes were posted at their workstations. They were also not given assignments like their similarly situated probationary colleagues, which made it difficult for Atron and John to learn all aspects of their job. Their supervisor then used a racial slur toward them and said that if they did not learn their job properly, they would be fired at the end of their probationary period. Both employees were upset by the remark and reported it per the agency’s EEO policy. While the EEO Specialist interviewed Atron and John she did not interview the supervisor. The Division Chief pressured the EEO Specialist not to interview the supervisor, claiming the complaint “was a joke” and filed by two disgruntled employees. A few weeks later, Atron and John’s supervisor issued them their final probationary EPRs. Both employees were rated unsatisfactory and terminated. This scenario is based on a case from 2017 out of the Third Circuit, Castleberry v. STI Group. The plaintiffs, Atron Castleberry and John Brown, who were African American, were subjected to racial harassment at their work site. Anonymous notes with racial content were left in their work areas. In one instance, their supervisor used a racial slur toward them, coupled with a threat of termination. Following this last incident, both Mr. Castleberry and Mr. Brown reported the incident to management. Two weeks later, both were fired with no explanation. Because there was a tangible employment action, the employer had no defense. Let’s examine another scenario based on another recent case from the Third Circuit.
This second scenario is based on a real case involving a county government office which was recently decided in the Third Circuit. Thomas was Director of the county’s Veterans Affairs Office. Sheri was a part-time clerk assigned to his office, which was located in a building isolated from other county offices. Over a four-year period, Thomas tried to kiss Sheri on the lips at least weekly; approached her from behind and embraced her tightly; massaged her shoulders and touched her face. On occasion, he also sent Sheri sexually explicit messages from his work email, to which she did not respond. On a few occasions Sheri told Thomas to stop the conduct, at first mildly and jokingly. But when she did so, he would turn “nasty”. He also occasionally warned Sheri to “look busy” or the county would get rid of her position. The county’s top management knew of similar incidents by Thomas in the past and had verbally warned him twice to stop, but his behavior continued. When another supervisor overheard Sheri telling a co-worker about the incidents involving Thomas, the supervisor reported it to management, who investigated, resulting in Thomas’ termination. It may sound like the employer took care of this incident. But this isn’t the end of the story!
Sheri resigned her employment due to the harassment. She then filed an EEOC complaint alleging sexual harassment, which eventually went to federal court. The county filed a motion for summary judgment to dismiss the case. First it claimed that the county had an anti-harassment policy, including a reporting procedure, which Sheri acknowledged receiving. Second, Sheri never reported any incidents to the county. Third, the county claimed that when it did find out about Thomas’ conduct, it took “reasonable care to prevent and correct the harassment” by investigating the incident and terminating Thomas. Initially, the Middle District Federal Court in Pennsylvania awarded summary judgment in favor of the employer. The court stated that the county had reasonable policies and the employee unreasonably failed to take advantage of them. The employee appealed to the Third Circuit Court of Appeals.
The name of this case is Minarsky v. Susquehanna County, decided in July 2018, and it’s probably one of the most important harassment cases we’ll cover. Sheri Minarsky, a clerical support person for Susquehanna County, was the plaintiff. Thomas Yadlosky was the County’s Director of Veterans Affairs. The Third Circuit overturned the district court’s decision and remanded it back for jury trial. Here’s what it found on the two elements of the Faragher-Ellerth defense: The Third Circuit questioned if the employer met the first element, determining whether or not the employer exercised reasonable care to prevent and correct any harassing behavior. Even though the county had a policy and the harasser was reprimanded at least twice, the situation did not improve until he was finally terminated. The court also said the county may not have monitored the harasser effectively. Quoting from the opinion: “Knowing of his behavior, and knowing [that she] worked alone with [him] … should someone have ensured that she was not being victimized? Was his termination not so much a reflection of the policy’s effectiveness, but rather, did it evidence the county’s exasperation, much like the straw that broke the camel’s back?”
The second element of the defense determines whether or not the employee unreasonably failed to take advantage of corrective opportunities, namely reporting the harassment. Here, the Third Circuit said that the employee may not have been unreasonable in failing to report it and remanded this question for a jury to decide. It reiterated that Yadlosky, the harasser, had been warned numerous times about his behavior but was never punished beyond reprimands and his behavior continued. The court also said that based on his behavior and comments he made about her job, she may have had a well-founded belief that the supervisor would retaliate against her if she reported the harassment. A noteworthy footnote in this decision states: “While the policy underlying Faragher-Ellerth places the onus on the harassed employee to report her harasser and would fault her for not calling out this conduct so as to prevent it, a jury could conclude that the employee’s non-reporting was understandable, perhaps even reasonable.” The footnote further states that “there may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it. Victims do not always view it in this way. Instead, they anticipate negative consequences or fear that the harassers will face no reprimand; thus, more often than not, victims choose not to report the harassment.”
There are a lot of lessons we can learn from these scenarios. It is not enough for an employer to have a policy if there’s a culture of fear within the organization or if it does a poor job of addressing incidents of harassment. Here are some best practices to help agencies address complaints of harassment, especially when committed by supervisors, and avoid liability. These are things agencies should be doing on a regular basis. Agencies must ensure that EEO training is done on a regular basis for all employees, but especially for supervisors and managers. EEO training, including training on awareness and prevention of sexual harassment, is required for all new managers. This reminds supervisors and managers that they will be held accountable for compliance with the commonwealth’s and agency’s EEO policies. Additionally, mandatory web-based training on sexual harassment awareness and prevention for managers and supervisors, as well as employees, is annually distributed for completion through LSO. EEO policies must be updated and disseminated on an annual basis to all agency employees and posted publicly. These policies should clearly define protected classes, prohibited behaviors of harassment, and include clear reporting procedures. When complaints are received, they must be investigated promptly, thoroughly and neutrally according to guidelines within Management Directive 410.10. When allegations are founded, agencies must take swift and effective action to address the harassment and prevent its reoccurrence. Also, measures must be taken to prevent retaliation against complainants and witnesses. Finally, agencies are encouraged to review the EEOC’s Report from June 2016, “Select Task Force on the Study of Harassment in the Workplace.” This report includes ideas to enhance internal anti-harassment training and to promote the principles of equal opportunity and non-discrimination as central to an agency’s culture.
To summarize, we reviewed the EEOC’s “Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors.” We established who a supervisor is under the law. We reviewed the defenses available to employers in harassment cases. We noted that if the supervisor’s harassment results in a tangible employment action, there are no defenses available. We also explained that there is an affirmative defense when there is no tangible action. Finally, we reviewed best practices to investigate complaints of harassment and prevent future incidents of harassment, especially by managers and supervisors.
Thank you for taking this web-based training. If you have any questions, please call the Office of Administration’s Bureau of Equal Employment Opportunity at 717-783-1130.
This version of the course is intended for individuals who require an accommodation for a disability. Once you have fully reviewed the information in this training, contact your Human Resources Office to request credit for completing this course. You will not receive credit for completing this course until you do so.