Introduction to
Federal
Employment Discrimination Law
Harassment
Supervisory
Harassment - There are two types of harassment cases involving supervisors:
(1) where the harassment results in a tangible employment action; and (2) where the
harassment does not result in a tangible employment action. If the harassment
results in a tangible employment action, then the employer is automatically liable for the
harassment. However, if the harassment does not result in a tangible employment
action, the the employer can avoid liability by establishing a two-pronged defense: (a)
that the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (b) that the
plaintiff/employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise.
Case example:
Faragher v. City of Boca Raton,
118 S.Ct. 2275 (1998) and
Burlington
Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998) are the two U.S.
Supreme Court cases that first set forth the standard for supervisory
harassment cases.
Co-Worker Harassment -
In Crowley v. L.L. Bean, Inc.,
303 F.3d 387 (1st Cir. 2002), the court explained:
To establish employer
liability for a non-supervisory co-employee, a plaintiff must
demonstrate that the employer "'knew or should have known of the
charged sexual harassment and failed to implement prompt and
appropriate action.'" White, 221 F.3d at 261 (quoting Blankenship v.
Parke Care Ctrs., Inc., 123 F.3d 868, 872 (6th Cir. 1997)).
