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Questions & Answers for Small Employers on Employer Liability for Harassment by Supervisors
The EEOC's
Questions &
Answers for Small Employers on Employer Liability for Harassment by
Supervisors,
available at
http://eeoc.gov/policy/docs/harassment-facts.html, provides as
follows:
Title VII of the Civil
Rights Act (Title VII) prohibits harassment of an employee based on
race, color, sex, religion, or national origin. The Age
Discrimination in Employment Act (ADEA) prohibits harassment of
employees who are 40 or older on the basis of age, and the Americans
with Disabilities Act (ADA) prohibits harassment based on
disability. All of the anti-discrimination statutes enforced by the
EEOC prohibit retaliation for complaining of discrimination or
participating in complaint proceedings.
The Supreme Court issued two major decisions in June of 1998 that
explained when employers will be held legally responsible for
unlawful harassment by supervisors. The EEOC's Guidance on Employer
Liability for Harassment by Supervisors examines those decisions and
provides practical guidance regarding the duty of employers to
prevent and correct harassment and the duty of employees to avoid
harassment by using their employers' complaint procedures.
1. When does harassment violate federal law?
Harassment violates
federal law if it involves discriminatory treatment based on race,
color, sex (with or without sexual conduct), religion, national origin,
age, disability, or because the employee opposed job discrimination or
participated in an investigation or complaint proceeding under the EEO
statutes. Federal law does not prohibit simple teasing, offhand
comments, or isolated incidents that are not extremely serious. The
conduct must be sufficiently frequent or severe to create a hostile work
environment or result in a "tangible employment action," such as hiring,
firing, promotion, or demotion.
2. Does the guidance
apply only to sexual harassment?
No, it applies to all
types of unlawful harassment.
3. When is an employer
legally responsible for harassment by a supervisor?
An employer is always
responsible for harassment by a supervisor that culminated in a tangible
employment action. If the harassment did not lead to a tangible
employment action, the employer is liable unless it proves that: 1) it
exercised reasonable care to prevent and promptly correct any
harassment; and 2) the employee unreasonably failed to complain to
management or to avoid harm otherwise.
4. Who qualifies as a
"supervisor" for purposes of employer liability?
An individual qualifies as
an employee's "supervisor" if the individual has the authority to
recommend tangible employment decisions affecting the employee or if the
individual has the authority to direct the employee's daily work
activities.
5. What is a "tangible
employment action"?
A "tangible employment
action" means a significant change in employment status. Examples
include hiring, firing, promotion, demotion, undesirable reassignment, a
decision causing a significant change in benefits, compensation
decisions, and work assignment.
6. How might harassment
culminate in a tangible employment action?
This might occur if a
supervisor fires or demotes a subordinate because she rejects his sexual
demands, or promotes her because she submits to his sexual demands.
7. What should employers do to prevent and correct harassment?
Employers should
establish, distribute to all employees, and enforce a policy prohibiting
harassment and setting out a procedure for making complaints. In most
cases, the policy and procedure should be in writing.
Small businesses may be able to discharge their responsibility to
prevent and correct harassment through less formal means. For example,
if a business is sufficiently small that the owner maintains regular
contact with all employees, the owner can tell the employees at staff
meetings that harassment is prohibited, that employees should report
such conduct promptly, and that a complaint can be brought "straight to
the top." If the business conducts a prompt, thorough, and impartial
investigation of any complaint that arises and undertakes swift and
appropriate corrective action, it will have fulfilled its responsibility
to "effectively prevent and correct harassment."
8. What should an anti-harassment policy say?
An employer's anti-harassment policy should make clear that the employer
will not tolerate harassment based on race, sex, religion, national
origin, age, or disability, or harassment based on opposition to
discrimination on participation in complaint proceedings. The policy
should also state that the employer will not tolerate retaliation
against anyone who complains of harassment or who participates in an
investigation.
9. What are important elements of a complaint procedure?
The employer should
encourage employees to report harassment to management before it becomes
severe or pervasive.
The employer should designate more than one individual to take
complaints, and should ensure that these individuals are in accessible
locations. The employer also should instruct all of its supervisors to
report complaints of harassment to appropriate officials. The employer
should assure employees that it will protect the confidentiality of
harassment complaints to the extent possible.
10. Is a complaint
procedure adequate if employees are instructed to report harassment to
their immediate supervisors?
No, because the supervisor
may be the one committing harassment or may not be impartial. It is
advisable for an employer to designate at least one official outside an
employee's chain of command to take complaints, to assure that the
complaint will be handled impartially.
11. How should an employer investigate a harassment complaint?
An employer should conduct
a prompt, thorough, and impartial investigation. The alleged harasser
should not have any direct or indirect control over the investigation.
The investigator should interview the employee who complained of
harassment, the alleged harasser, and others who could reasonably be
expected to have relevant information. The Guidance provides examples of
specific questions that may be appropriate to ask. Before completing the
investigation, the employer should take steps to make sure that
harassment does not continue. If the parties have to be separated, then
the separation should not burden the employee who has complained of
harassment. An involuntary transfer of the complainant could constitute
unlawful retaliation. Other examples of interim measures are making
scheduling changes to avoid contact between the parties or placing the
alleged harasser on non-disciplinary leave with pay pending the
conclusion of the investigation.
12. How should an
employer correct harassment?
If an employer determines
that harassment occurred, it should take immediate measures to stop the
harassment and ensure that it does not recur. Disciplinary measures
should be proportional to the seriousness of the offense. The employer
also should correct the effects of the harassment by, for example,
restoring leave taken because of the harassment and expunging negative
evaluations in the employee's personnel file that arose from the
harassment.
13. Are there other
measures that employers should take to prevent and correct harassment?
An employer should correct
harassment that is clearly unwelcome regardless of whether a complaint
is filed. For example, if there is graffiti in the workplace containing
racial or sexual epithets, management should not wait for a complaint
before erasing it. An employer should ensure that its supervisors and
managers understand their responsibilities under the organization's
anti-harassment policy and complaint procedures. An employer
should screen applicants for supervisory jobs to see if they have a
history of engaging in harassment. If so, and the employer hires such a
candidate, it must take steps to monitor actions taken by that
individual in order to prevent harassment. An employer should keep
records of harassment complaints and check those records when a
complaint of harassment is made to reveal any patterns of harassment by
the same individuals.
14. Does an employee
who is harassed by his or her supervisor have any responsibilities?
Yes. The employee must
take reasonable steps to avoid harm from the harassment. Usually, the
employee will exercise this responsibility by using the employer's
complaint procedure.
15. Is an employer legally
responsible for its supervisor's harassment if the employee failed to
use the employer's complaint procedure?
No, unless the harassment
resulted in a tangible employment action or unless it was reasonable for
the employee not to complain to management. An employee's failure to
complain would be reasonable, for example, if he or she had a legitimate
fear of retaliation. The employer must prove that the employee acted
unreasonably.
16. If an employee
complains to management about harassment, should he or she wait for
management to complete the investigation before filing a charge with
EEOC?
It may make sense to wait
to see if management corrects the harassment before filing a charge.
However, if management does not act promptly to investigate the
complaint and undertake corrective action, then it may be appropriate to
file a charge. The deadline for filing an EEOC charge is either 180 or
300 days after the last date of alleged harassment, depending on the
state in which the allegation arises. This deadline is not extended
because of an employer's internal investigation of the complaint.
Further guidance on
harassment can be found in the 1999 Guidance on Employer Liability for
Unlawful Harassment by Supervisors; the 1980 Guidelines on Sexual
Harassment; the 1990 Policy Statement on Current Issues in Sexual
Harassment; the 1990 Policy Statement on Sexual Favoritism; and the 1994
Enforcement Guidance on Harris v. Forklift Sys., Inc.. These can all be
found on EEOC's web site (www.eeoc.gov). They are also available by
calling the EEOC's Publications Distribution Center (800-669-3362 or TTY
800-800-3302), or by writing to EEOC's Office of Communications and
Legislative Affairs, 1801 L St., N.W., Washington, D.C. 20507.
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