Recent Supreme Court rulings have significantly shaped the legal definition of sexual harassment including what it is, when employers are liable and what they must do to prevent sexual harassment.

The Court's rulings have made it clear that an employer can be liable for sexual harassment even if he or she is unaware of the harassment by supervisors, and even if the victim of the harassment suffers no negative job consequences, such as a demotion or dismissal. The Court has also made it clear that an employer can be liable for sexual harassment even if the accused perpetrator is the same sex as the victim.

In the March 1998 case, Oncale v. Sundowner Offshore Services, the Supreme Court ruled that workers are protected from same-sex sexual harassment. The case involved a male employee working on an oil rig who alleged that three other male employees forcibly subjected him to sex-related, humiliating actions in the presence of co-workers. The employee's complaints to supervisory personnel produced no remedial action; and the employee eventually quit due to sexual harassment and verbal abuse. The court avoided discussing the sexual orientation of either the plaintiff or the alleged harassers. Instead, the court stated that "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex."

In Burlington Industries v. Ellerth, brought before the court in June 1998, Kimberly Ellerth sued the company on the premise that the sexual harassment from her supervisor's boss forced her out of her position. The employee had not told anyone else about the incidents, although she knew that the company had a policy against sexual harassment. She suffered no economic harm, and, in fact, received a promotion. Ellerth's case drew attention because it was believed to affect the Paula Jones sexual harassment case.

The outcome of her case was based largely on Faragher v. Boca Raton, also decided on in June 2000. Beth Ann Faragher, a lifeguard, claimed that she had been subjected to harassment over an extended period of time by two of her supervisors.

In this case, Faragher had confided in a third supervisor who failed to inform upper management. Although the employer had a written policy against harassment, the policy had not been distributed to employees at the lifeguard's work site, nor had the employer established any means of tracking behavior of the lifeguards' supervisors.

According to Paul Gibson, an attorney and human resources analyst for CCH, a health and human resources group in Riverwoods, Ill., the rulings in the Ellerth and Faragher cases make employers liable for any type of sexual harassment by supervisors, subject to a very limited defense.

Employers historically have been held strictly liable where an employee suffered some tangible negative job consequence (such as a poor performance appraisal, demotion or termination) for rebuffing or complaining about a supervisor's harassment. However, in these cases there were no clearly tangible negative job repercussions for the alleged victims of the harassment. Instead, the employees alleged that actions by their supervisors created a "hostile work environment" that was severe and pervasive enough to be intimidating or offensive.

Second, while employees would normally have to show that their employer was negligent in not uncovering or not stopping the harassing behavior once it was discovered, in the two most recent cases, the employees argued that they should merely be required to show (1) the actions occurred, (2) the actions were sufficiently severe and (3) the perpetrators were acting in some sense as agents of the employer.

"The ruling makes it clear that employers have a responsibility to stop workplace harassment, but employees also have a duty to try to prevent or stop the harassment by using the company's policies and complaint procedures," said Gibson. "As a result, the key issues for employers are to make certain that the policies and procedures are in place, that supervisors understand how to implement these policies and that all employees are aware of their existence and how to use them."

To avoid liability for harassment, The Court advises companies to take several proactive steps to guard against sexual harassment including: creating and distributing a written anti-harassment policy; providing a complaint and investigation procedure to combat any alleged harassment that occurs; and training supervisors and employees to ensure they are aware of the harassment prevention program and where they can file a complaint if they believe they are victims of harassment.

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