Top Court Defines Liability

The U.S. Supreme Court this summer handed down several rulings that, for the first time, clearly establish when an employer is liable in a sexual harassment claim.

In a first for the justices, the court ruled that same sex harassment exists and can be prosecuted. In a separate case, the court also ruled that an employer is liable "under any circumstances" if sexual harassment results in any form of job action, such as demotion, unwanted transfer, denial of promotion, or termination. The employee first must prove tangible job action was taken, and then demonstrate that behavior constituting sexual harassment existed. If the employee proves both points, the employer automatically should be found "vicariously liable" for the action of the supervisor, even if management was not aware of the harassment.

In another decision however, the Supreme Court offered employers a possible defense when no tangible job action was taken in the wake of harassment. First, the employer must prove it "exercised reasonable care" to prevent or correct sexual harassment. Second, the employer must demonstrate the employee unreasonably failed to take advantage of the firm's sexual harassment policy and procedures.

In fact, establishing a policy is not enough to protect employers from sexual harassment claims, says Jay W. Waks, co-chair of labor practice at New York law firm Kaye, Scholer, Fierman, Hays & Handler LLP. "Companies should have more - frequent training for supervisory and nonsupervisory employees and should require acknowledgment from employees that they understand the policy," Waks says.

Although such efforts are worthwhile, businesses with limited resources rankle at the proliferating paperwork. Harry Mayo Jr., vice president of Mayo Industries Inc.. a Dayton-based automotive-services firm with 25 employees, says executing a harassment policy has become cumbersome.

"We're devoting so much time and energy to non-business-related work explains Mayo, "it's hard to keep up."

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