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Earlier this year, the U.S. Supreme Court handed down two important decisions regarding sexual harassment (Faragher v. City of Boca Raton and Burlington Industries Inc. v. Ellerth). These two decisions reaffirm the critical need for fire departments to seriously address potential sexual harassment on an ongoing basis.
As Justice David H. Souter observed in delivering the Court's opinion in the Faragher case, "It is by now well recognized that hostile environment sexual harassment by supervisors (and, for that matter, co-employees) is a persistent problem in the workplace." The fire service (career, volunteer and combination) certainly is no exception.
Sexual harassment is a form of sexual discrimination, which is prohibited by Title VII of the Civil Rights Act of 1964. The courts have found two general types of harassment. One is "quid pro quo" harassment, in which sexual favors are traded for job benefits. "Sleep with me and you will get a promotion" is the classic example. Imposing this kind of condition is an abuse of the authority granted to a supervisor by the organization (be it a business or government agency). Thus, when this type of harassment occurs, most courts automatically impose liability. It does not matter whether others in the organization knew or approved of the harassment.
The other form of sexual harassment is the creation of a "hostile environment," whose definition is much less clear. It occurs when sexual conduct (words or actions) creates an intimidating, hostile or offensive working environment. This is a much more subjective determination that never has been well defined. Further, it has been necessary to show negligence on the part of the employer in order to successfully make this claim. The worker has been required to prove that the employer knew (or should have known) of the harassment and did not try to stop it.
The Faragher case is of particular interest because it involves a public employee in an occupation similar to the fire service. Beth Ann Faragher was a lifeguard for the City of Boca Raton, FL. She claimed that several male supervisors created a sexually hostile environment at the beach by subjecting her to uninvited and offensive touching, as well as making lewd remarks and speaking of women in offensive terms. The city had a sexual harassment policy, but it had not been distributed among the city's lifeguards. Also, she did not complain to higher management about the hostile environment at her workplace, a remote beach location.
Under the Court's June rulings a worker no longer needs to show that the employer was negligent in its failure to stop or prevent harassment. Instead, courts will decide based upon the doctrine of "vicarious liability," under which an employer will be held liable for sexual harassment by supervisors.
Jane Howard-Martin and Chris-topher Ramsey are Pittsburgh attorneys who have carefully studied the Court's decisions. They point out that the Court has blurred the distinction between the two types of sexual harassment claims.
"Now, once an employee establishes that the alleged sexual harassment by a supervisor is 'severe or pervasive,' the employee has asserted an actionable claim under Title VII for which employers are automatically liable," they write. If the supervisor sought favors, made job-related threats or merely created a hostile environment, the employer is liable, regardless of whether it knew (or should have known) of the actions.
There is no defense to vicarious liability in cases in which sexual harassment results in a tangible employment action, such as a hiring, firing, demotion or promotion. How-ever, in cases involving a hostile environment, but no specific employment action, employers may be able to establish a defense to protect themselves from liability.