The U.S. Equal Employment Opportunity Commission
Questions & Answers for Small Employers on Employer
Liability for Harassment by Supervisors
Title VII of the Civil Rights Act
(Title VII) prohibits harassment of an employee based on race,
color, sex, religion, or national origin. The Age Discrimination in Employment Act (ADEA)
prohibits harassment of employees who are 40 or older on the basis
of age, and the Americans with
Disabilities Act (ADA) prohibits harassment based on
disability. All of the anti-discrimination statutes enforced by the
EEOC prohibit retaliation for complaining
of discrimination or participating in complaint proceedings.
The Supreme Court issued two major decisions in June of 1998
that explained when employers will be held legally responsible for
unlawful harassment by supervisors. The EEOC's Guidance on Employer Liability for Harassment by
Supervisors examines those decisions and provides practical
guidance regarding the duty of employers to prevent and correct
harassment and the duty of employees to avoid harassment by using
their employers' complaint procedures.
- Harassment violates federal law if it involves discriminatory
treatment based on race, color, sex (with or without sexual
conduct), religion, national origin, age, disability, or because
the employee opposed job discrimination or participated in an
investigation or complaint proceeding under the EEO statutes.
Federal law does not prohibit simple teasing, offhand comments, or
isolated incidents that are not extremely serious. The conduct must
be sufficiently frequent or severe to create a hostile work
environment or result in a "tangible employment action," such as
hiring, firing, promotion, or demotion.
- No, it applies to all types of unlawful
harassment.
3. When is an employer legally responsible for harassment by a
supervisor?
- An employer is always responsible for harassment by a
supervisor that culminated in a tangible employment action. If the
harassment did not lead to a tangible employment action, the
employer is liable unless it proves that: 1) it exercised
reasonable care to prevent and promptly correct any harassment;
and 2) the employee unreasonably failed to complain to
management or to avoid harm otherwise.
4. Who qualifies as a "supervisor" for purposes of employer
liability?
- An individual qualifies as an employee's "supervisor" if the
individual has the authority to recommend tangible employment
decisions affecting the employee or if the individual has
the authority to direct the employee's daily work activities.
- A "tangible employment action" means a significant change in
employment status. Examples include hiring, firing, promotion,
demotion, undesirable reassignment, a decision causing a
significant change in benefits, compensation decisions, and work
assignment.
6. How might harassment culminate in a tangible employment
action?
- This might occur if a supervisor fires or demotes a subordinate
because she rejects his sexual demands, or promotes her because she
submits to his sexual demands.
- Employers should establish, distribute to all employees, and
enforce a policy prohibiting harassment and setting out a procedure
for making complaints. In most cases, the policy and procedure
should be in writing.
- Small businesses may be able to discharge their responsibility
to prevent and correct harassment through less formal means. For
example, if a business is sufficiently small that the owner
maintains regular contact with all employees, the owner can tell
the employees at staff meetings that harassment is prohibited, that
employees should report such conduct promptly, and that a complaint
can be brought "straight to the top." If the business conducts a
prompt, thorough, and impartial investigation of any complaint that
arises and undertakes swift and appropriate corrective action, it
will have fulfilled its responsibility to "effectively prevent and
correct harassment."
8. What should an anti-harassment policy say?
- An employer's anti-harassment policy should make clear that the
employer will not tolerate harassment based on race, sex, religion,
national origin, age, or disability, or harassment based on
opposition to discrimination on participation in complaint
proceedings. The policy should also state that the employer will
not tolerate retaliation against anyone who complains of harassment
or who participates in an investigation.
- The employer should encourage employees to report harassment to
management before it becomes severe or pervasive.
- The employer should designate more than one individual to take
complaints, and should ensure that these individuals are in
accessible locations. The employer also should instruct all of its
supervisors to report complaints of harassment to appropriate
officials.
- The employer should assure employees that it will protect the
confidentiality of harassment complaints to the extent
possible.
10. Is a complaint procedure adequate if employees are
instructed to report harassment to their immediate
supervisors?
- No, because the supervisor may be the one committing harassment
or may not be impartial. It is advisable for an employer to
designate at least one official outside an employee's chain of
command to take complaints, to assure that the complaint will be
handled impartially.
11. How should an employer
investigate a harassment complaint?
- An employer should conduct a prompt, thorough, and impartial
investigation. The alleged harasser should not have any direct or
indirect control over the investigation.
- The investigator should interview the employee who complained
of harassment, the alleged harasser, and others who could
reasonably be expected to have relevant information. The Guidance
provides examples of specific questions that may be appropriate to
ask.
- Before completing the investigation, the employer should take
steps to make sure that harassment does not continue. If the
parties have to be separated, then the separation should not burden
the employee who has complained of harassment. An involuntary
transfer of the complainant could constitute unlawful retaliation.
Other examples of interim measures are making scheduling changes to
avoid contact between the parties or placing the alleged harasser
on non-disciplinary leave with pay pending the conclusion of the
investigation.
- If an employer determines that harassment occurred, it should
take immediate measures to stop the harassment and ensure that it
does not recur. Disciplinary measures should be proportional to the
seriousness of the offense. The employer also should correct the
effects of the harassment by, for example, restoring leave taken
because of the harassment and expunging negative evaluations in the
employee's personnel file that arose from the harassment.
13. Are there other measures
that employers should take to prevent and correct harassment?
- An employer should correct harassment that is clearly unwelcome
regardless of whether a complaint is filed. For example, if there
is graffiti in the workplace containing racial or sexual epithets,
management should not wait for a complaint before erasing it.
- An employer should ensure that its supervisors and managers
understand their responsibilities under the organization's
anti-harassment policy and complaint procedures.
- An employer should screen applicants for supervisory jobs to
see if they have a history of engaging in harassment. If so, and
the employer hires such a candidate, it must take steps to monitor
actions taken by that individual in order to prevent
harassment.
- An employer should keep records of harassment complaints and
check those records when a complaint of harassment is made to
reveal any patterns of harassment by the same individuals.
14. Does an employee who is harassed by his or her supervisor
have any responsibilities?
- Yes. The employee must take reasonable steps to avoid harm from
the harassment. Usually, the employee will exercise this
responsibility by using the employer's complaint procedure.
15. Is an employer legally responsible for its supervisor's
harassment if the employee failed to
use the employer's complaint procedure
- No, unless the harassment resulted in a tangible employment
action or unless it was reasonable for the employee not to complain
to management. An employee's failure to complain would be
reasonable, for example, if he or she had a legitimate fear of
retaliation. The employer must prove that the employee acted
unreasonably.
16. If an employee complains to management about harassment,
should he or she wait for management to complete the investigation
before filing a charge with
EEOC?
- It may make sense to wait to see if management corrects the
harassment before filing a charge. However, if management does not
act promptly to investigate the complaint and undertake corrective
action, then it may be appropriate to file a charge. The deadline
for filing an EEOC charge is either 180 or 300 days after the last
date of alleged harassment, depending on the state in which the
allegation arises. This deadline is not extended
because of an employer's internal investigation of the
complaint.
Further guidance on harassment can be found in the 1999 Guidance on Employer Liability for Unlawful
Harassment by Supervisors; the 1980 Guidelines on Sexual
Harassment; the 1990 Policy Statement
on Current Issues in Sexual Harassment; the 1990 Policy Statement on Sexual Favoritism;
and the 1994 Enforcement Guidance on
Harris v. Forklift Sys., Inc.. These can all be found on
EEOC's web site (www.eeoc.gov). They are also available by calling
the EEOC's Publications Distribution Center (800-669-3362 or TTY
800-800-3302), or by writing to EEOC's Office of Communications and
Legislative Affairs, 1801 L St., N.W., Washington, D.C. 20507.
This page was last modified on June 21, 1999.
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