Discrimination in the workplace on the basis of race, color, religion, national origin, sex (whether or not of a sexual nature), age or disability is illegal. Harassment based on any of those factors also is illegal. In addition, an employer can be held liable for retaliation against an individual for opposition to prohibited discrimination or for participation in the complaint process, often referred to as “protected activity.” The most common forms of workplace harassment are sexual harassment and racial harassment. (See EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 6/18/99).

Two United States Supreme Court cases dealing with sexual harassment, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998), changed the way courts look at sexual harassment as well as all other forms of workplace harassment. Prior to these cases, sexual harassment had been thought of separately from any other form of unlawful workplace harassment. After the decisions in Ellerth and Faragher, however, all unlawful workplace harassment is handled in much the same manner.

The biggest impact of these two cases is the idea of strict liability: The employer is strictly liable for workplace harassment by a supervisor that results in a tangible employment action. There is no defense to this kind of action. Prevention is the only way to avoid liability for this type of harassment.

After the Ellerth and Faragher cases, there are two basic types of harassment. The first type involves a “tangible employment action” (formerly “quid pro quo”). The other is what is known as “hostile work environment,” which involves conduct that is severe or pervasive.

After the United States Supreme Court decisions in Ellerth and Faragher, it is even more important for employers to be informed about potential problems in the workplace, and to take affirmative steps to prevent and/or stop unlawful harassment. It is now clear that supervisors act on behalf of the employer, and the employer will be held liable for their unlawful conduct that results in a tangible employment action, even if the employer had no knowledge of the situation. In other cases of workplace harassment (those that create a hostile work environment), the employer may defend the action if it can show that: (1) the employer exercised reasonable care to prevent and promptly correct any harassment; and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer, or to avoid harm otherwise. A strong policy against this type of behavior, and effective complaint/investigatory procedures with appropriate corrective action timely administered, are a must for any employer who wants to avoid liability.