Employer liability for workplace harassment can be established in the following ways:
- Employers can be subject to automatic liability for sexual harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. This is known as quid pro quo harassment. Thus, supervisors must be trained on and follow the workplace anti-harassment policy and conduct expectations.
- If the supervisor’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Accordingly, it is imperative that employers have an anti-harassment policy in place and a clearly communicated complaint procedure to lay the foundation for this defense.
- Employers can also be liable for sexual harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.
- When investigating allegations of harassment, the EEOC and IDHR look at the entire record: including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be unlawful is made on a case-by-case basis.
For more information on employment practices and related questions, contact Ancel Glink’s labor and employment team of attorneys. This article was authored by Darcy L. Proctor, one of Ancel Glink’s employment litigation attorneys.