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Jewish World Review / June 30, 1998 / 6 Tamuz, 5758

Linda Chavez

>Why take responsibility if
somebody else will pay?

IN TWO OF THE MORE BIZARRE DECISIONS in recent years, the Supreme Court last week announced a new legal theory that will have far-reaching consequences in American workplaces: An employer can be held liable when one of its employees sexually harasses another, even if the employer had no way of knowing the harassment was occurring and the victim did not inform the employer of what was happening.

When news of the decisions came down, plaintiff lawyers attending a national conference in Monterey, Calif., "danced in the aisles," according to the Los Angeles Times -- and for good reason. The court's decisions will invite more suits in an area of law that has already become a growth industry.

Although the facts in the two cases before the court differed, they shared one thing in common. In both instances, the employers did not know that their managers were engaging in offensive behavior toward female employees because the victims chose not to complain to anyone until after they left their jobs.

In one case, supervisors for the parks and recreation department in Boca Raton, Fla., sexually taunted and groped a female lifeguard who was employed part-time during the summer for five consecutive years. Yet she did not file any formal complaint against the transgressors until two years after she voluntarily left her job.

In the other case, a Burlington Industries midlevel manager made repeated sexually offensive remarks to a female employee who worked in another city in a division under his general supervision. The woman did not complain to her immediate supervisor, nor to anyone else in the company hierarchy -- even though the company had well-established procedures for filing a sexual-harassment complaint. She later quit her job after being reprimanded for not returning customers' calls in a timely fashion, citing reasons unrelated to the harassment.

Three weeks later, however, she wrote a letter to her employer complaining that the sexually offensive behavior of the district manager caused her to resign.

The court based its decision that the employers were responsible in both these cases on the principle that a company can be held liable for the actions of its supervisors "while acting within the scope of their employment." This same principle applies, for example, when a company is held accountable for the discriminatory actions of one of its supervisors who refuses to hire blacks or Hispanics even if the company itself has no policy to discriminate against such persons.

The irony in all of these cases is that the actual persons who committed the wrongful acts -- refusing to hire minorities, sexually harassing female employees -- get off the hook altogether. Only the company, not the individual manager or supervisor, is liable.

So how can companies protect themselves from the unscrupulous behavior of rogue supervisors and managers? The Supreme Court has an answer that should fuel a boom in the consulting industry. A company can defend itself against liability by showing that it took "reasonable care to prevent and correct any sexually harassing behavior." In other words, hire a bevy of consultants and make sure every employee attends sexual-harassment indoctrination sessions. But even that won't protect employers if a supervisor engages in sexually harassment anyway and it involves "a tangible employment action, such as discharge, demotion or undesirable reassignment."

The message from the court is clear. Individuals need not take responsibility for their own actions. Supervisors who make lewd and offensive remarks or physically grope their employees can't be sued directly, but the companies they work for can be. The worst that can happen to a guilty sexual harasser is that he lose his job, while his employer can be fined millions. And victims who keep quiet about harassment -- thereby ensuring that their employers can't stop the harassment -- can still sue the employers.

The lesson is: Don't bother to take responsibility for your own action -- or inaction -- so long as someone else will pay. That's hardly the workplace behavior the U.S. Supreme Court ought to encourage.