In the article, the author explores the controversial problem of employer liability for sexual harassment and the challenges that companies would face as a result of a USSC decision. The ruling of the United States Supreme Court was that an employer was always liable for creating a hostile work environment when discrimination takes a form of a tangible action of employment. Previously, in a number of cases that used to deal with hostile environments, several courts had implemented more relaxed standards, thus finding that an employer was only liable in cases when they were negligent in establishing an appropriate sexual harassment policy.
The new ruling was particularly challenging to employers because it held that they would be “vicariously liable” for harassment conducted by a supervisor because the latter was aided by the power of the supervisory position to carry such harassment. This is an issue because employers have limited grounds for defending themselves in court in sexual harassment cases. Employers would be highly likely to be ruled responsible for the acts of sexual harassment committed by their supervisors despite the affirmative defense, even in instances when they acted reasonably.
A significant burden of proof is placed on the employers to show that they were not responsible for the harassment occurring in the workplace. Therefore, in practice, absolute employer liability is the main challenge. Because of this, organizations would have to enforce highly strict and limiting rules associated with the reduction of hostile work environments to avoid costly and reputation-damaging litigation. It is essential that employers invest effort and time in developing carefully-drafter policies and only hire trained and ethical personnel to avoid any litigation and the high expenses that are associated with them.