When an employer receives a complaint or otherwise learns ofalleged sexual harassment in the workplace, the employer shouldinvestigate promptly and thoroughly. The employer should takeimmediate and appropriate corrective action by doing whatever isnecessary to end the harassment, make the victim whole by restoringlost employment benefits or opportunities, and prevent themisconduct from recurring. Disciplinary action against theoffending supervisor or employee, ranging from reprimand todischarge, may be necessary. Generally, the corrective actionshould reflect the severity of the conduct. See Waltmanv. International Paper Co., 875 F.2d at 479 (appropriateness ofremedial action will depend on the severity and persistence of theharassment and the effectiveness of any initial remedial steps).Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309-10,44 EPD ¶ 37,557 (5th Cir. 1987) (the employer'sremedy may be "assessed proportionately to the seriousness of theoffense"). The employer should make follow-up inquiries to ensurethe harassment has not resumed and the victim has not sufferedretaliation.
Photo provided by Flickr
The Supreme Court decides and addresses the issue of fetalhazards. In this case, the employer barred women of childbearingage from certain jobs due to potential harm that could occur to afetus. The Court rules that the employer's restriction againstfertile women performing "dangerous jobs" constitutes sexdiscrimination under Title VII. The Court further rules that theemployer's fetal protection policy could be justified only if beingable to bear children was a bona fide occupational qualification(BFOQ) for the job. The fact that the job posed risk to fertilewomen does not justify barring all fertile women from theposition.
Read about five of the biggest sexual harassment cases
Photo provided by Flickr
In some circumstances, however, unlawful harassment will occur and harm will result despite the exercise of requisite legal care by the employer and employee. For example, if an employee’s supervisor directed frequent, egregious racial epithets at him that caused emotional harm virtually from the outset, and the employee promptly complained, corrective action by the employer could prevent further harm but might not correct the actionable harm that the employee already had suffered. Alternatively, if an employee complained about harassment before it became severe or pervasive, remedial measures undertaken by the employer might fail to stop the harassment before it reaches an actionable level, even if those measures are reasonably calculated to halt it. In these circumstances, the employer will be liable because the defense requires proof that it exercised reasonable legal care and that the employee unreasonably failed to avoid the harm. While a notice-based negligence standard would absolve the employer of liability, the standard set forth in Ellerth and Faragher does not. As the Court explained, vicarious liability sets a “more stringent standard” for the employer than the “minimum standard” of negligence theory.
The 9 Most Damning Workplace Sexual Harassment …
InCommission Decision No. 84-1, CCH Employment Practices Guide ¶6839, the Commission found that active participation in sexualconduct at the workplace, e.g., by "using dirty remarks and tellingdirty jokes," may indicate that the sexual advances complained ofwere not unwelcome. Thus, the Commission found that no harassmentoccurred with respect to an employee who had joined in the tellingof bawdy jokes and the use of vulgar language during her first twomonths on the job, and failed to provide subsequent notice that theconduct was no longer welcome. By actively participating in theconduct, the charging party had created the impression among herco-workers that she welcomed the sort of sexually oriented banterthat she later asserted was objectionable. Simply ceasing toparticipate was insufficient to show the continuing activity was nolonger welcome to her. See also Loftin Boggs v. City of Meridian,633 F. Supp. 1323, 41 FEP Cases 532 (S.D. Miss. 1986) (plaintiffinitially participated in and initiated some of the crude languagethat was prevalent on the job; if she later found such conductoffensive, she should have conveyed this by her own conduct and herreaction to her co- workers' conduct).
Ashley Alford won $95 million in a harassment case Fox News ..
See also Ferguson v. E.I. DuPont deNemours andCo., 560 F. Supp. 1172, 33 EPD ¶ 34,131 (D. Del. 1983)("sexually aggressive conduct and explicit conversation on the partof the plaintiff may bar a cause of action for [hostileenvironment] sexual harassment"); Reichman v. Bureau ofAffirmative Action, 536 F. Supp. 1149, 1172, 30 FEP Cases 1644(M.D. Pa. 1982) (where plaintiff behaved "in a very flirtatious andprovocative manner" around the alleged harasser, asked him to havedinner at her house on several occasions despite his repeatedrefusals, and continued to conduct herself in a similar mannerafter the alleged harassment, she could not claim the allegedharassment was unwelcome).