While 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 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.