Employers’ Responsibility for Harassment

The most important thing to remember is that, with two exceptions, employers are not automatically responsible for harassment in the workplace, but are responsible for failure to take reasonable corrective actions when they become aware of harassment.

Exception #1: Employers are automatically responsible for harassment when it occurs because they ignored earlier problems they knew about, or took unreasonably little action in response to such problems.

Exception # 2: Employers are automatically responsible for harassment when:

  • a supervisor in a direct line of authority over the employee:
  • is involved in the harassment,
  • and also inflicts a “tangible employment action” on the employee:
  • A “tangible employment action” is an action that would ordinarily have to come to the attention of the company or agency, such as hiring, firing, promotion, compensation, and work assignments such as transfers to much less desirable positions.

Employers can also be found responsible for harassment when:

  • a supervisor in a direct line of authority over the employee who does not impose a tangible employment action on the employee, or
  • a supervisor who is not a supervisor in a direct line of authority over the employee, or
  • a co-worker, or
  • a third party such as a customer or vendor or repair personnel, is involved in the harassment, if –
    • The employer fails to prove that it exercised reasonable care to avoid harassment and to eliminate it when it might occur, or
    • The employer fails to prove that the complaining employee failed to act with reasonable care to take advantage of the employer’s safeguards and otherwise to prevent harm that could have been avoided.
  • This is called the “affirmative defense” in harassment cases.
    • To win by using the affirmative defense, the employer has the burden of proving these two factors.
    • The affirmative defense does not apply to harassment when a supervisor in a direct line of authority over the employee is responsible for the harassment, and also inflicts a “tangible employment action” on the employee as part of the harassment, or as punishment for refusing to “go along” with the harassment. The phrase “tangible employment action” is explained above.
    • The plaintiff must use the employer’s internal complaint procedures.
    • There are rare exceptions, such as when the person who is supposed to receive the complaint is the harasser and there is no one else to whom to complain, or if the employer has made a travesty of its own complaint system.
    • However, one of the most frequent reasons courts throw out harassment cases is the failure of the employee to complain as soon as something bad happens.
    • Never assume you will be able to get off on an exception.

Employees harassed by third parties, co-workers, and supervisors who are not in a direct line of authority over the employee – or by supervisors who are in a direct line but who have not imposed a tangible employment action on the employee – can protect themselves against the “affirmative defense” by:

  • Making internal complaints every time an incident of serious harassment occurs, or a remedy does not work. This nips the defense in the bud. As long as the complaints are not about trivial matters and are reasonable in form – no yelling, obscenities, threats, etc. – repeated complaints give the employer an opportunity to cure the problem.
  • Put the complaint in writing whenever possible,. Make sure it shows the date, and to whom you are giving it. Keep a copy.
    • If you make on oral complaint, follow it up with a written complaint as soon as possible. Make sure to mention the date, time, and content of your oral complaint, and to whom you gave it.
    • If an internal complaint is taken seriously, and leads to a reasonable remedy that prevents any further harassment, it is a perfect solution because no lawsuit is necessary.
    • If the employer ignores repeated reasonable complaints about serious matters, however, the jury will often award much more in damages.

Showing that the employer failed to act with reasonable care to avoid harassment and to eliminate it when it might occur. Some classic ways of defeating the affirmative defense include:

  • Showing that the employer ignored earlier complaints by the same employee;
  • Showing that the employer ignored earlier complaints by other employees;
  • Showing that the employer made exceptions to its harassment policy for “top earners” or other favored personnel who were the subjects of earlier complaints;
  • Showing that the employer made it difficult to make complaints;
  • Showing that the employer retaliated against earlier complainants;
  • Showing that the employer threatened earlier complainants;
  • Showing that the employer adopted a harassment policy but failed to distribute it;
  • And similar evidence.

Employees who did not file internal complaints because of these problems may have to show that they knew of the problems at the time they decided not to file an internal complaint. Use the grapevine. Talk to others. Make sure to mention your own problem.

BUT it is always better to file an internal complaint about a serious problem than to try to excuse a failure to file. Do not allow yourself to become discouraged. If you do not make enough internal complaints, the employer may be able to wriggle out of any responsibility.