when pigs fly … expect the unbelievable

Archive for May 22nd, 2009

Ellerth was one of those long-suffering women who simply didn’t want to make waves.  She had a good job.  She needed her job.  So she endured constant sexual harassment from her supervisor.  She never reported it to her supervisor, or anyone, for that matter, even though she knew that Burlington had a policy that prohibited sexual harassment.  Eventually, Ellerth couldn’t stand it anymore and quit. After she quit, she sued Burlington, arguing that due to the sexual harassment that she regularly endured, she ultimately had no choice but to leave the job she liked and needed.

At the trial, Burlington made a reasonable defense.  (1) It had a clear policy prohibiting sexual harassment.  (2)  It didn’t know about the sexual harassment that Ellerth complained of, because she had never reported it.  (3)  It had no reasonable way of finding out about the harassment; Ellerth never complained to anybody.  So Burlington argued that it should not be held liable for the acts of a renegade employer about which it knew nothing.  Burlington won at the trial court.

Ellerth appealed, and eventually the United States Supreme Court agreed to hear the case.  There, Ellerth urged the Court to apply a concept of vicarious liability, which is a basic tenet of agency law.   

The Ellerth case brought two critical rulings to the fore for the future of employers on the issue of sexual harassment.  First, the Court held that in a case where a supervisor sexually harasses an employee and in the process takes a negative employment action against the employee, the company will be liable no matter what — even if the company actively prohibited sexual harassment, had no idea that the harassment was occurring, and had done nothing wrong, per se [vicarious liability].  Second, the Court held that in a similar situation, where no negative employment action occurs, but the employee is faced with working in a sexually suggestive atmosphere which is unreasonably offensive [hostile work environment], the employer will be held liable unless it can prove (1) that it did all it reasonably could to prevent and correct the harassment and (2) the employee failed to take advantage of the preventive or corrective opportunities provided by the employer in its anti-harassment policy.

Enough said.

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