As a result of those decisions, under federal law, an employer is legally responsible to a victimized employee for sexual harassment by a supervisor with authority over that employee in two instances.
1. When the harassment leads to a tangible employment action, such as demotion, decreased compensation, significantly different work assignments, or termination, the employer's liability is absolute.
2. When there has been no tangible employment action, the employer is liable unless it can prove that o it has taken reasonable care to prevent and correct promptly any sexually harassing behavior (such as widely disseminating an effective policy and complaint procedure) and o the employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."
1998 Supreme Court Decisions
Faragher v. City of Boca Raton
Burlington Industries v. Ellerth
Taken together these U.S. Supreme Court decisions hold employers responsible for their supervisors' sexually harassing behaviors in the workplace. They also hold employees responsible for reporting offensive behavior in accordance with the employer's policy and complaint procedure if the policy and procedures have been well publicized and fairly and consistently enforced by the employer.
2004 Supreme Court Decision
Employer Liability in Federal Cases
Pennsylvania State Police v Suders
In June 2004, the U.S. Supreme Court held that an employer has no legal recourse when its supervisor's unlawful harassment includes an "official act" that causes an employee to quit (constructive discharge). Examples of such an official act may include "a humiliating demotion, extreme cut in pay, or transfer to a position in which the employee would face unbearable working conditions."
However, if the hostile work environment did not include an "official act" on the part of the supervisor, the employer can assert the defense that it is not liable for the supervisor's conduct because it exercised reasonable care to prevent and promptly correct any wrongful behavior and that the employee unreasonably failed to take advantage of complaint procedures or other preventive opportunities provided by the employer.
2006 U.S. Supreme Court Decision
Retaliation: Burlington Northern Santa Fe Corp v. Sheila White
In June 2006 the U.S. Supreme Court issued an important decision dealing with retaliation against an employee who has reported or complained about sexual harassment. Sheila White, a female employee working in a railroad yard, complained about sex discrimination. Shortly afterward, she was reassigned to a less desirable position. The reassignment did not involve loss of wages but did include harder and dirtier work. The plaintiff filed a charge with the EEOC regarding the reassignment and another retaliation charge claiming the employer placed her under surveillance following her previous complaint. Soon afterwards she was