Here’s my final installment of my thoughts on the recent Supreme Court case addressing an employer’s liability for supervisor sexual harassment. In a case of co-worker sexual harassment, the question is largely one of negligence. The Supreme Court had some comments about establishing an employer’s negligence. They said:
In any event, the dissent is wrong in claiming that our holding would preclude employer liability in other cases with facts similar to these. Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant. Thus, it is not true, as the dissent asserts, that our holding “relieves scores of employers of responsibility” for the behavior of workers they employ.
Wow! There’s some good stuff in there for employee rights advocates. First, “preventative measures” has been thought of as part of the employer’s affirmative defense in a supervisor harassment case. The Vance Court says that an employer is liable – not only if they are negligent in addressing the harassment – but also if they are negligent in preventing it. Second, they provide a very useful list of things that an employer should do to prevent harassment:
– Monitor the workplace for sexual harassment
– Respond to complaints
– Provide a system of registering sexual harassment complaints
– Encourage (rather than discourage) complaints of sexual harassment
The first and third items on this list are noteworthy. What if a plaintiff shows that an employer did not have a protocol in place to monitor the workplace for sexual harassment? Is the employer liable? Must the employer have a formal registry of all sexual harassment complaints it receives? The Supreme Court suggests that the answer to these questions is . . . yep.
This blurs the line between co-worker harassment and supervisor harassment. Proving that an employer did not adequately monitor the workplace for sexual harassment might now be enough to prove negligence and lack of preventative measures. This would allow the plaintiff to prevail regardless of whether the offender is a co-worker or supervisor. While the Vance opinion is generally thought to limit an employer’s exposure in sexual harassment cases, this language from Vance might do the exact opposite.