San Francisco Employment Law Firm Blog
The leading opinion on the issue of employers’ obligation to remedy workplace sexual harassment of a victim by his co-workers, is the ninth circuit case Ellison v. Brady (1991). In that case, the court carefully analyzed the approach that a number of other courts take toward determining whether the employer complied with the obligations with regard to harassment imposed by law. The court made several important conclusions. First, the court reiterated that employers are liable for failing to remedy or prevent a hostile work environment of which management-level employees knew or should have reasonable known.
Then, the court attended to the issue of what action an employer should take against the harasser to avoid liability. The EEOC guidelines recommend that an employer’s remedy should be immediate and appropriate without adversely affecting and terms and conditions of the complainant’s employment. The ninth circuit, agreeing with a number of other courts, held that the remedies against harassment should be reasonably calculated to end the harassment. Not all harassment warrants dismissal. Rather, remedies should be assessed proportionately to the seriousness of the offense. Employers should impose sufficient penalties to assure a workplace free from sexual harassment. The reasonableness of an employer’s remedy will depend on its ability to stop harassment and the kind of remedy used.
In Ellison the harasser was transferred to a different work locations for six months, after which he was returned to work to the original location. The harasser was not subjected to any other significant discipline, even though the victim complained repeatedly about the relatively egregious comments and sexual innuendos by the harasser. Further, the employer actualy transferred the complainant to the less desirable location. The court concluded that by failure to take effective remedial measures against the harasser combined with taking adverse action against the victim by transferring her to a less desirable work location, the employer did not meet it’s obligation with regard to harassment prevention and was therefore liable.
Another clear pattern is present in subsequent court decision on harassment. An employer who continues using the same remedial action toward a repeated offender is violating the law, because it should be obvious to the employer that if a more gentle remedy does not change the harasser behavior, the same remedy is not effective, and a more stringent disciplinary action must take place. Thus, writing up the harasser over and over is not a sufficient remedial measure. After one or two write-ups, an employer is well advised to take a more serious action, including suspension, administrative leave or even termination of employment, especially if the evidence of harassment is clear and corroborated by other employees.