When sexual harassment by a supervisor creates a hostile or offensive environment in the workplace but results in no disciplinary action, an employer can avoid liability by showing:
(1) That the employer exercised reasonable care to prevent and correct promptly any sexually harassing conduct; and
(2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
An important part of the first element of the defense is the preparation and distribution of a well-drafted policy prohibiting sexual harassment. In fact, as a recent case illustrates, a policy that is unclear or is not comprehensive could damage or destroy an employer's ability to assert the second element of the defense.
In that case, Elizabeth was promoted to the position of a team leader at a bank. Shortly thereafter, she began to report to a male supervisor. He made Elizabeth's life miserable at work for over two years, until she finally complained to management about his behavior. While the supervisor's harassment did not involve sexual overtures or other sexually provocative comments or actions, it was driven by the supervisor's hostility toward women, generally, and Elizabeth in particular. The supervisor's conduct was offensive and sometimes threatening, ranging from stereotypical remarks about the deficiencies of women as managers to an apparent reference to the O.J. Simpson trial when the supervisor told Elizabeth that he could see why a man would slit a woman's throat."
The presence of a policy against sexual harassment and a victim's lengthy delay before complaining will often help shield an employer from liability. In Elizabeth's case, however, the bank's policy against harassment described only sexual advances, requests for sexual favors, and other actions of a sexual nature. Although the conduct Elizabeth was enduring was unlawful sex discrimination, the bank's narrowly worded policy led her to think otherwise. The deficient policy would not support a defense for the employer, and its incomplete definition of prohibited harassment excused Elizabeth's delay in complaining.
Although Elizabeth's case shows the importance of having an accurate and complete policy against sexual harassment, that is only part of a policy of prevention that will minimize the risk of employer liability. Also contributing to the liability of Elizabeth's employer was the inadequacy of its investigation after receiving the complaint. The bank basically ignored the allegations of harassment, focusing instead on the supervisor's objectionable management style. No one at the bank actually asked the supervisor whether he had made any of the sexually harassing remarks, nor did anyone follow up on an allegation that another bank employee had left because of sexual harassment from the same supervisor. The only consequences for the supervisor had been a 90-day probation period and a directive to improve his management style and smile more."
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