The law firm of Kaup & Shultz, LC, is familiar with the many ways that a business can held liable for the sexual harassment committed by its employees, including both the negligence and strict liability theories. The firm knows how to deal with the Faragher-Ellerth defense and to attempt to show that the employer failed to adopt a sexual harassment policy that was reasonably capable of preventing and correcting sexual harassment. If you have any doubts about whether your company correctly handled your complaint of sexual harassment, you should consult with a Kansas employment attorney who can properly advise you. |
| The Law of Sexual Harassment and Sexual Discrimination |
| Kaup & Shultz, Attorneys at Law, LC |
| Kaup & Shultz, Attorneys at Law, LC Overland Park, KS 913-385-9955 and 901 Kentucky Suite 305 Lawrence, KS 785-838-4300 email us |
| The information in these pages is intended for Kansas employees who are interested in sexual harassment law and hostile work environment. The information is intended for educational purposes only and is not intended to establish an attorney client relationship with any person. If you have an actual legal problem concerning sexual harassment, you should contact a competent Kansas employee rights attorney. |
Who Can Be Held Liable for Sexual Harassment?
Title VII, which is the basic civil rights law that makes discrimination
based upon sex illegal, provides that only the employer can be liable for
employment discrimination, and that includes sexual harassment.
So, the questions becomes, who can cause the employer to be liable for
sexual harassment and how does this happen. This question of whether
the employer can be held liable is extremely important because the
Supreme Court has held that an employer cannot be held liable just
because it employs someone who engages in sexual harassment.
Thus, there are a number of ways that an employer can be held liable
for sexual harassment:
Title VII, which is the basic civil rights law that makes discrimination
based upon sex illegal, provides that only the employer can be liable for
employment discrimination, and that includes sexual harassment.
So, the questions becomes, who can cause the employer to be liable for
sexual harassment and how does this happen. This question of whether
the employer can be held liable is extremely important because the
Supreme Court has held that an employer cannot be held liable just
because it employs someone who engages in sexual harassment.
Thus, there are a number of ways that an employer can be held liable
for sexual harassment:
- The first is that the employer is a small business and the owners operates it
himself as a doing business. In other words, the employer is not a corporation or
other business entity. If the owner engages in sexual harassment, and there are
at least 15 employees in the business, then the owner, which is essentially the
business, can be held liable for his own sexual harassment.
- The second way for a business to be liable for sexual harassment is if it is a
small business, usually family owned and incorporated or something similar, and
the owner treats the business like his own little enterprise. What we mean by
this, is if the owner does not really treat the business like it is a business entity,
but uses the funds as if they were his personal bank, then he may be considered
the alter-ego of the business and the business can be held liable or responsible for
the owners sexual harassment as well as that of other employees if the conditions
discussed below are met.
- The negligence theory. A business can be liable for the sexual harassment of
its employees, including supervisors and management, when it knew or should
have known that sexual harassment occurred and it did not provide an immediate
and appropriate response to the harassment. It should be enough if middle or
senior managers in the company know of the sexual harassment and do nothing.
Of course, if the victim of the harassment reports it to company management or
to human resources, and there is no immediate and appropriate corrective
action. Of course, what the victim of sexual harassment might think is
appropriate might be different from what the company thinks. The courts have
said that the company's response to sexual harassment must be reasonable to the
nature of the harassment. Under this same theory, a business can be liable for
sexual harassment committed by its customers or others who come into the
business, like delivery persons.
- Strict liability theory. A company can be strictly liable for sexual
harassment committed by its supervisory employees. This is true whether the
supervisor took some tangible employment action or simply harassed the victim.
However, when there is a tangible employment action, such as a demotion, or a
reassignment to a less desirable job, the company is vicariously liable for the
supervisor's actions. This means the company is liable because it employed a
supervisor who engaged in sexual harassment and who used his official power to
commit sexual harassment.
- On the other hand, if there was no tangible employment action against the
victim of sexual harassment, then the company will be held liable unless it can
show 1) that it exercised reasonable care to prevent and correct promptly any
sexually harassing behavior, and 2) that the victim unreasonably failed to take
advantage of any preventative or corrective opportunities provided by the
employer or to avoid harm otherwise. This is called the Faragher-Ellerth
defense. As you can guess, there are many arguments about whether the
employer had a sufficient sexual harassment for preventing and correcting sexual
harassment, as well as arguments over whether the victim unreasonably feared
to use that policy.
- Please go on to page 5 of this section to learn about remedies and the court
system/
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |