Unfortunately, the actual description of what can be termed as a sexual harassment has continued to evolve each day. As the American population is forced to spend time in their individual places of work, the probability that they will get into intimate relationships in the workplace has immensely grown. As these relationships flourish, they also shrivel, leading to increased sexual harassment cases. The dynamic definition of acceptable work related discussion and conduct is integrated with a culture that advertises sexuality. This has led to the confusion amongst employees and will probably encourage claims (Schaner, 2010).
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Claims made on sexual harassment grounds have evolved over the years into two basic theories namely “hostile work environment” and quid pro quo, Quid pro quo was the first to evolve. This name is derived from the Latin language used to describe circumstances in which workers are forced to choose between giving in to sexual demands and foregoing or at least not getting work related benefits, promotions, or risk not being employed at all. In a nutshell, employees may suffer from gross employment consequences due to the act of harassment.
For the case to be proven, the plaintiff should demonstrate that he or she was exposed to unwelcome, undesired, or offensive treatment. The employee also needs to prove that the alleged harassment was based on sex. The response that the employee had on the harassment had detrimental effects on the employee’s employment, benefits, or other terms of the employment (Schaner, 2010).
The second theory of sexual harassment claims is complicated and is referred to as offensive or hostile work environment complaint. In the past, the courts held that the employer had the responsibility to ensure the provision of safety at the workplace for employees. A workplace that is sexually hostile to an employee is not a safe working environment. Any workplace that tolerates sexual harassment is regarded as a discriminatory and is thereby prohibited according to Title VII.
Such cases usually commence with a resignation followed closely by a lawsuit of constructive discharge. Some of the facts that the courts look at when hearing this claim include whether the complaint was made verbally and physically abused or both; the frequency in which this occurred; whether the conduct was patently offensive or whether it was hostile; whether other employees took part in the act and whether the act was directed to more than one individual (Schaner, 2010).
In 1998, the United States Supreme Court elucidated and dramatically transformed the scope of the employer’s duty in supervisory cases of sexual harassment. The lawsuits included Faragher v. City of Boca Raton, 524 U.S. 775 and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). These two cases brought to the fore two principal questions: 1) according to title VII, when is the employer regarded to be liable when a supervisor commits a sexual offense; and 2), what standards of responsibility will apply to title VII sexual harassment cases whether it will be strict liability or liability in relation to the employer’s defense? After the analysis of these two cases, the Supreme Court established a new standard of liability in sexual harassment cases in relation to supervisors.
The court stated that when a supervisor acts in a tangible employment action within quid pro quo, the employer is liable. Outside any tangible action on employment, the employer is answerable to the liability of the supervisors conduct. However, the liability can be rebutted by the employer presumably on an affirmative defense. This defense is largely reliant on the employer’s ability to demonstrate that he has an efficient and existing system to prevent sexual harassment clearly stating its procedures, policies, and training programs for employees.
However, this case does not in any way modify the negligence liability criteria in non supervisory, or co-worker sexual harassment actions. The plaintiff should indicate the awareness of harassment incidences by the employer who was negligent of taking the appropriate actions (Schaner, 2010).
In addition, the Supreme Court also upheld that the employer can be strictly liable for the sexual offenses committed by the company’s supervisor if the ranking of the employee is considerably higher in the organizational structure of the company to be regarded as a proxy of the organization. However, in non-single events of sexual harassment, other law courts have upheld that an employer may develop both areas of the Faragher affirmative defense to refute a liability finding.
Under this evaluation, even if an employee reports in good time about the harassment and the employer took swift measures to remedy the situation, the employer looses defense of affirmative action. This is due to the employee’s action of complaining, and thus the second part of the affirmative defense cannot be established (Schaner, 2010).
What can be learnt from this article is that the employer bears the responsibility for the actions or offenses of sexual harassment committed by members of the senior staff. However, this is only if the action can be proven to be a tangible employment action. The employer may also be liable if he or she knew about the offenses and did not take prompt measures to remedy the situation.
Schaner, D. (2010). Some Things Never Change: Sexual Harassment Update 2010:The Hospitality Law Conference. Houston, Texas: Haynes and Boone, LLP.