Stop Sexual Harassment.jpgWhile the criminal charges against Dominique Strauss-Kahn have now been dismissed, his conduct and his employer’s response provides a textbook full of examples of how not to respond to sexual harassment in the workplace.

Sexual Harassment Overview

Under Title VII of the Civil Rights Act, there are two basic forms of actionable sexual harassment: 

Quid pro quo – conditioning employment or some aspect of employment on a favorable response to sexual advances in the workplace); and  Hostile environment harassment – sexual comments and conduct so pervasive that the workplace becomes intimidating, hostile, or offensive). Both forms of sexual harassment require unwelcome conduct of a sexual nature. An employer’s liability for the sexual harassment of a supervisor turns in part on whether the harassment claim is a quid pro quo or hostile work environment claim.  Under U.S. Supreme Court law (Faragher v City of Boca Raton, 524 US 775 (1998) and Burlington Indus v Ellerth, 524 US 742 (1998)) where an employee proves actionable sexual harassment involving a tangible employment action by a supervisor, whether the harassment was quid pro quo or hostile environment, the employer is strictly liable even if it knew nothing about the harassment.  In the absence of a tangible employment action, an employer will still be liable for a hostile work environment created by its supervisors unless it successfully establishes as an affirmative defense that:   The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and  The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm. . . .” Thus, an employer must initially establish that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior.  Today, most employers have established and distributed policies prohibiting sexual harassment and how such prohibitions will be enforced. Such steps will often constitute an adequate general preventive measure.  The second part of the affirmative defense requires an employer to show “that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”  Brantley v. Cinergy Corp., 2007 U.S. Dist. LEXIS 62904 (S.D. Ohio Aug. 27, 2007) (Fact issues as to whether supervisors failed to adequately address certain incidents brought to their attention and that employees were consequently discouraged from reporting other incidents). However, the “mere existence of a grievance procedure and a policy against discrimination, coupled with a respondent’s failure to invoke that procedure,”  [*68] will not necessarily insulate an employer from Title VII liability, especially where the facts suggest the procedure and policy were not reasonably “calculated to encourage victims of harassment to come forward.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 72-73, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). Of course, an employee may have a reasonable explanation for why he or she did not complain about the alleged harassment. To avoid summary disposition, however, an employee will have to articulate specific facts that support the reason for not complaining. n25 Thus far, simply alleging, in conclusory fashion, that he or she did not complain because of fear of retaliation has been ineffective in avoiding summary judgment, especially when the policy stated that “reprisals against the reporting employee would not be tolerated.” n26 At a minimum, an employer must establish and distribute an anti-harassment policy, with alternate avenues of relief, to its employees. The employer also should have employees sign a receipt for the policy to prevent an employee from subsequently claiming that he or she never received the policy. Simply distributing the policy is  [*436]  probably not enough and the employer should provide supervisors and managers with sexual harassment training or, at the very least, train them regarding the employer’s policy. If there is a complaint, an employer should investigate and take prompt remedial action to end the alleged harassment. At best, such action may be a defense to any claim and, at worst, it may limit the employer’s liability. When attorneys assess and investigate a sexual harassment claim, the following should be the focus: Did the employer have a sexual harassment policy? If so, did the employer distribute and/or post it? Can it be proved that the complainant knew of the policy? Did the policy provide that complaints could be brought to someone other than the complainant’s supervisor? Did the employee complain about the alleged harassment? If not, or if a significant delay occurred between the alleged harassment and the employee’s complaint, did the employee have a reasonable explanation for inaction? Did the employer make a full investigation and then take prompt remedial measures? Had other employees complained about sexual harassment? If so, how did management handle these complaints?
  • Quid pro quo harassment involves conditioning employment or some aspect of employment on a favorable response to sexual advances made in the workplace; and
  • Hostile environment harassment consist of sexual comments and conduct so pervasive that the workplace becomes intimidating, hostile, or offensive. 

Both forms of sexual harassment require unwelcome conduct of a sexual nature. An employer’s liability for the sexual harassment of a supervisor turns in part on whether the harassment claim is a quid pro quo or hostile work environment claim. 

This is because under U.S. Supreme Court law (Faragher v City of Boca Raton, 524 US 775 (1998) and Burlington Indus v Ellerth, 524 US 742 (1998)) where an employee proves actionable sexual harassment involving a tangible employment action by a supervisor, whether the harassment was quid pro quo or hostile environment, the employer is strictly liable even if it knew nothing about the harassment.

In the absence of a tangible employment action, an employer will still be liable for a hostile work environment created by its supervisors unless it successfully establishes as an affirmative defense that:

  • The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
  • The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm. . . .”

This framework, however, would not likely be available to the IMF based on Mr. Strauss-Kahn’s conduct and the IMF’s response. 

Why Employers Cannot Afford to Look the Other Way

Most employers have written policies prohibiting sexual harassment, clear explanations for how such prohibitions will be enforced, and several ways to report concerns about sexual harassment. Such steps will often constitute an adequate general preventive measure by employers that will meet the first prong of the defense. 

In contrast, according to Bloomberg Businessweek’s profile of Mr. Strauss-Kahn, the IMF appeared to simply look the other way when it came to Mr. Strauss-Kahn’s improper conduct:     

As head of the IMF he was able to competently – some say brilliantly – steer the fund through a global economic crisis, all the while conducting himself with women in a manner that even his colleagues found unseemly, with little consequence. 

Even more troubling is that a member of the IMF’s HR department actually warned other managers “not to leave Strauss-Kahn alone in a room with any women.”

So even if it is assumed that the affirmative defense was viable, i.e., Mr. Strauss-Kahn took no tangible employment action against a subordinate, the IMF would still have difficulties in showing “that prospective plaintiff employees unreasonably failed to take advantage of the IMF’s preventive or corrective opportunities it provided to avoid harm.

This is because in light of the IMF’s apparent indifference, an employee could easily argue that IMF employees were essentially discouraged from reporting incidents of sexual harassment involving Mr. Strauss-Kahn. In fact, one such employee who claimed to have acquiesced to Mr. Strauss-Kahn’s pursuits described her situation as follows:  

I believe that Mr. Strauss-Kahn abused his position in the manner in which he got to me … I felt that I was ‘damned if I did and damned if I didn’t … But it is, in my view, incontestable that Mr. Strauss-Kahn made use of his position to obtain access to me.”

The Take Away

There are a number of important components to an employer’s anti-harassment policy that should be developed with experienced legal counsel. A cornerstone of that policy, however, must include an employer’s willingness to investigate and take prompt remedial action to end the alleged harassment – no matter the brilliance or status of the alleged harasser.