The final element required to prove a hostile-environment sexual harassment case is that the employer either knew of the harassing conduct, should have known of the conduct, or failed to take prompt and adequate remedial action.
An employer is not automatically liable for all sexual harassment that takes place in its workplace. In the Faragher and Ellerth cases, both decided in 1998, the U.S. Supreme Court held that employers are liable for sexual harassment perpetrated by any of its officials who are the immediate supervisor of the harassee or hold any higher position. However, not all persons who engage in sexual harassment are supervisors. Employers may also be liable for sexual vendors or customers of the employer, if the employer either actually knew of the harassment or should have known of the harassment had it engaged in reasonable vigilance. Employer knowledge, in this case, essentially means that agents of the employer, managerial or supervisory-level employees, were aware or should have been aware of the harassment.
How does a plaintiff prove than an employer that did not have actual knowledge of sexual harassment “should have known about the harassment?” The Faragher case illustrates this example. An employer will not be protected from liability by its lack of knowledge that an employee suffered from sexual harassment if it provides no procedure or an inadequate procedure to facilitate complaints about sexual harassment, if it fails to exercise reasonable oversight of its employees and supervisors on the job, or if it fails to put its employees on notice that conduct constituting sexual harassment is prohibited so as to discourage them from engaging in such conduct.
If a court finds that an employer knew or should have known about incidents of sexual harassment, the employer can only escape liability by proving that it acted promptly and adequately to remedy the harassment.
Example: If an employer discovers that sexually explicit pictures are posted in areas of the workplace, it must ensure that the pictures are immediately taken down and that the employee or employees who displayed them are put on notice that such conduct will not be tolerated in the future. In more serious instances, such as where a female employee is continually propositioned by a male employee despite her refusals, effective correction actions would involve discipline or perhaps termination of the harasser(s).
Remember: For the employer’s corrective action to be sufficient to protect the employer from liability for sexual harassment, it must be both prompt and effective. Where the employer receives a report of sexual harassment and does not promptly investigate it, or worse, does not act against the harasser quickly upon determining the conduct or remark occurred, the message the employer is sending to the harasser and harassee and other employees is that sexual harassment is not a “big deal” worthy of immediate action.
In addition to acting promptly, the employer is also under an obligation to take actions reasonably calculated to end the sexual harassment and make the employee whole for any adverse actions that the employee may have suffered. It is important to note that the employer is not obligated to discipline a harasser, or issue a particular level of discipline to the harasser, based on the offense, so long as what the employer does might be reasonably expected to end and correct the harassment. This is true even if the harassee contends that the employer’s remedial actions should have involved more severe discipline or discharge.