Labor and Employment Bulletin, by M. Paulose Jr., Esq. and L. Sorra, J.D. 2005
In our last pamphlet, we discussed the types of workplace conduct that could rise to the level of unlawful sexual harassment, such as forcible touching. We concluded that such touching could lead to a lawsuit against the individual harasser. So if Joe, your coworker improperly forced himself onto you at work, you could sue him for sexual harassment.
But a number of you have asked whether you could also sue the employer for sexual harassment. Which is a good question, and one that deserves an answer, since, after all, an employer has a responsibility to control its employees. In this pamphlet we attempt to answer that question.
Under federal law, an employer is indeed responsible for preventing sexual harassment in the workplace. And an employer who fails to meet that responsibility is subject to liability. But most employers automatically meet the responsibility by implementing strong policies against sexual harassment, such as those found in employee manuals or handbooks. Some employers also conduct employee training during every employee’s initial hiring period, such as sensitivity training. And almost all employers post or handout a detailed description about the procedures on how and to whom to complain about sexual harassment.
Sometimes, however, these methods fail and sexual harassment still occurs. Can the employer shield itself from liability because it had implemented procedures in the first instance to prevent the harassment? The answer to that question is no, so long as you can prove that the employer failed to promptly and effectively prevent the harassment from occurring once it had notice of the harassing conduct.
In Hill v. The Childrens Village (SDNY 2002), a sociotherapist sued her employer for failing to adequately prevent sexual harassment. In the case, the therapist’s supervisor had rubbed up against the therapist and told her that she had a “sexy” body and that he could fulfill her “sexual needs.” The employer defended that it shouldn’t be held liable for the supervisor’s conduct, arguing that it had a strong policy against sexual harassment and that it investigated and stopped the harassment as soon as it learned of it. The Court however was not persuaded and preserved the case for the jury, finding in particular that whether the employer’s policy and investigation effectively stopped the harassment was a question for the jury.
In Rooney v. Capital Transportation Authority (NDNY 2000), the plaintiff similarly sued her employer for failing to prevent sexual harassment. She had been subjected to kissing, fondling, and intimidating acts by a coworker. The employer defended on the ground that it had taken prompt measures to prevent further harassment, such as suspending the harasser. However, the court found that the employer’s measures may not have been prompt enough and, like Hill, preserved the question of effectiveness for the jury.
What do these cases show? They show that even if an employer has strong policies against sexual harassment, the policies themselves will not insulate the employer from liability if the employer does not effectively carry out the procedures in the policies. In both the above cases, the employers may have taken ineffective actions to prevent the harassment and the courts took notice. Having a policy against sexual harassment is only as good as having it effectively implemented.
If you feel you have been sexually harassed, call an attorney right away. A good attorney will be able to determine whether your employer can be held liable.
