Man in Drag.jpgUnder existing law, employers may avoid liability for hostile environment sexual harassment by supervisors under certain circumstances. But a “trailblazing” company may be challenging the status quo with a “too ugly to sexually harass” defense.

Current Hostile Sexual Harassment Defense Law

To avoid liability for sexual harassment for hostile environment harassment by supervisors under Title VII, the U.S. Supreme Court requires the employer to show (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the plaintiff unreasonably failed to take advantage of corrective or preventive opportunities offered by the employer or to otherwise avoid harm. Burlington Indus v Ellerth, 524 US at 765; Faragher v City of Boca Raton, 524 US at 807.

To prove the first element, proof of the existence of an effective anti-harassment policy and grievance mechanism will ordinarily suffice under the Supreme Court’s Burlington decision. To prove the second element, proof that the plaintiff unreasonably failed to use the procedure will ordinarily suffice. Ellerth, 524 US at 765; Faragher, 524 US at 807–808.

Thus, Title VII requires reasonable prevention and reasonable remedial actions after the harassment has occurred.

Or ….. There’s the “too ugly to harass” defense?

Employers may have another defense to add to their sexual harassment defense tool box if a “trailblazing” New York City company appears to be pushing for the “too ugly to harass” defense.

Specifically, the Current Employment Law Blog by Timothy Eavenson reported that a former real estate company employee in New York City claimed she was sexually harassed by at least 7 different male employees.

In response, the owner of the company defended the company by pointing out that “no one would want to touch the former employee, because she’s too ugly.” (Quoting the Current Employment Law Blog). 

The Take-Away

Employers should not anticipate the U.S. Supreme Court (or any court for that matter) expanding current sexual harassment law to include the “too ugly to harass” defense. 

Instead employers should focus on having clear policy statements prohibiting discrimination in employment, defining prohibited discrimination, and providing multiple avenues for complaints of perceived discrimination. Such steps can go a long way toward helping an employer avoid liability for employment discrimination.