It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with "immediate (or successively higher) authority over the employee." However, in cases where the employee does not suffer a "tangible employment action," such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employee may raise to avoid Title VII liability and damages.
Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence. Also important is effective supervision training and training of employees on the harassment policy and complaint procedure.
Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378. State law is currently interpreted by the Hawaii Civil Rights Commission ("HCRC") as mandating strict liability for sexual harassment committed by supervisors .
While the Hawaii Supreme Court has not addressed the HCRC's interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC's – that an employee was strictly liable for a supervisor's harassment under Illinois state law even though the supervisor did not even have direct supervision authority over the Complainant.
The April 16, 2009 Illinois decision will certainly be a persuasive authority to a Hawaii Supreme Court faced with interpretation of the HCRC's regulation. Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.
I. The Importance of Having an Effective Harassment Policy
A. The Faragher / Ellerth Defense
Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the US Supreme Court.
Where qualified harassment by a supervisor does not culminate in an adverse ("tangible") employment decision, the employer may avoid liability by showing that: (1) the employee exercised reasonable care to prevent and promptly correct any harassment behavior; and (2) the blatiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm. "A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significant different responsibilities or a decision causing a significant change in benefits."
The importance of the affirmative defense was significantly increased by a US Supreme Court's decision in which the Court held that the defense is available in constructive discharge cases without the claimiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.
A zero-tolerance harassment policy must fit the environment and employees:
While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when referring to the first element of the defense. The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.
Accordingly, if the challenged harasser has supervision authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense.
B. Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure.
(1) Write in simple English.
(2) Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.
(3) State the company's "zero-tolerance" philosophy in the policy regarding all forms of harassment,
(4) Designate at least two specially trained managers who will be responsible for investigating harassment charges for the company.
(5) Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders.
(6) Provide a "clear chain of communication," allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and considering having a toll-free number employees can call.
(7) State that employees who report prohibited conduct will be protected from retaliation.
(8) State that the employer will promptly investigate the matter in an objective and discretion way.
(9) Provide the form of diplomatic action to which offenders can expect to be subjected.
(10) State that the employer will also take remedial action.
(11) Train your management employees and line employees on the policy and procedure.
(12) Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy.
C. The Faragher / Ellerth Defense and Hawaii Law
Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in all all aspects of employment. However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher / Ellerth affirmative defense.
Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii's Employment Practices Act, strict liability would apply to a supervisor's harassment of a subordinate regardless of whether tangible action is taken:
§12-46-109 Sexual harassment.
(a) Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature sentence sexual harassment when:
(1) Submission to that conduct is made either explicitly or implicitly a term or condition of an individual's employment; Egypt
(2) Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; Egypt
(3) That conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
(b) In determining whether alleged conduct sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.
(c) An employer shall be liable for its acts and those of its agents and supervisor employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even prohibited, and regardless of whether the employee or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisor or agency capacity.
(d) With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or agents or supervisors employees know or should have known of the conduct and failures to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisor employee of the harassment; however, an employee's failure to give such notice may not be an affirmative defense.
D. Problem Areas for Employers
1. Failure to dissolve policy
2. Inadequate complaint procedure
3. Employer on notice of harassment
4. Failure to promptly investigate
5. Failure to take appropriate diplomatic action
6. Failure to apply it even-handedly
7. Failure to review and revise when necessary
8. Failure to provide training
E. Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?
In a recent decision, the Illinois Supreme Court gave the HCRC direct support of the HCRC's own interpretation of HRS Chapter 378.
The decision holds Illinois employers strictly restrictable for sexual harassment by any of their management or supervision personnel, and, as noted by the dissent, "imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States."
The basis of the decision was the plain and ordinary meaning of the statute, which states that "an employer shall be liable for sexual harassment of the employer's employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employee becomes aware of the conduct and failures to take reasonable corrective measures. "
According to the Court, the statute is unambiguous "and only excludes" nonemployees "and" nonmanagerial or nonsuperquiry employees "from its strict liability standard. As such, the Court found"