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Rules on Employer Liability
for Sexual Harassment

I. Sexual harassment by a supervisor--vicarious liability for the employer.

A. Sexual harassment by a supervisor connected to a tangible employment action against the employee (quid pro quo)

  1. Employer is liable
  2. No affirmative defense.
  3. Negligence not an issue.

B. Sexual harassment by a supervisor with no tangible employment action against the employee (hostile work environment)

  1. Employee need not prove negligence.
  2. Affirmative defense--Employer may prove by a preponderance of the evidence:

a. Reasonable care to prevent and correct promptly any sexually harassing behavior (requires employer to have an anti-harassment policy and complaint procedure, dissemination of both, effective investigations, and effective actions), and

b. The employee unreasonably failed to take advantage of any preventative or corrective opportunities to avoid the harm.

II. Sexual harassment by a co-worker--negligence standard

A. Employee must prove that employer knew or should have known and took inadequate action. 66 LW 4643. (Requires employer to have an anti-harassment policy and complaint procedure, dissemination of both, effective investigations, and effective actions).

 

Burlington Industries, Inc. v. Ellerth,  524 U.S.742, 118 S.Ct. 2257 (1998);

Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998).


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