Even though federal and state laws have been in place for for several decades, instances of sex discrimination are still occuring in the workplace. Sexual harassment is illegal and no worker should have to tolerate it; it is a form of illegal sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments, employment agencies, labor organizations and the federal government. Workplace sexual harassment is any unwelcome sexual advance or conduct that creates an intimidating, hostile, or offensive working environment.
Municipal liability for the sexual harassment of employees by other employees is a serious issue for local governments, because Supreme Court cases hold that employers may be liable for all actionable sexual harassment by supervisors, regardless of whether the employer was aware of the harassment. The cases also create liability for an employer's failure to create a workplace free of a sexually harassing atmosphere.
According to Title VII of the Civil Rights Act of 1964, sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- an employee must submit to the behavior to keep their job or to get a promotion, a good job assignment or some other job benefit; or
- the behavior unreasonably interferes with work performance or creates an intimidating, hostile or offensive working environment.
42 U.S.C. § 2000e-2(a)(1); 29 C.F.R. § 1604.11(a)(3). The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces the federal law.
Washington State Law Against Discrimination
Washington State laws against discrimination in employment are contained in Ch. 49.60 RCW. They prohibit sex discrimination in employment, which includes sexual harassment. Under this law, individuals may file a lawsuit in state court or file a complaint with the Washington State Human Rights Commission. RCW 49.60.180 establishes a legal right for an employee to sue an employer for hostile work environment, sexual harassment, quid pro quo sexual harassment, and disparate treatment based upon gender.
Practical Advice for Government Employers
To comply with both state and federal law, local government employers should make it known to all employees that the agency has zero tolerance for sexual harassment in the workplace. Employers need to develop a formal but easily understood policy against sexual harassment with a sensible complaint procedure, and then they must effectively communicate this policy to all employees. Additionally, employers must exercise reasonable care to promptly correct any sexually harassing behavior.
- Develop a written anti-harassment policy and proactive workplace program and make sure that all employees have a copy of it. To make sure that all employees have received and understood the written policies, ask employees to sign a statement confirming their understanding of the policy, and keep a copy of the signed form in each employee's personnel file.
- Notify employees of their rights, including how to report incidents of harassment.
- Establish a clear complaint procedure that establishes a process for handling complaints, investigating and documenting charges, and correcting misconduct. Create an open atmosphere in which complaints can be raised without fear of retaliation.
- Educate and train managers and supervisors about their responsibilities under the anti-harassment policy.
- Educate and train all employees regarding responsible behavior in the workplace and appropriate procedures for reporting incidents of harassment.
- Investigate complaints promptly and thoroughly.
- Take prompt and effective remedial action.
Even though some of these cases are over 15 years old, they are the critical cases establishing the reach of sexual discrimination law.
- Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998) - Employer liability for conduct of supervisors
The Supreme Court ruled that when a supervisor has, in addition to creating a hostile work environment, taken some tangible employment action against the victim (e.g., demotion, undesirable work assignment, or denial of a raise), the employer is automatically liable for the supervisor's conduct. In other hostile environment cases, however, the employer may avoid liability by establishing both prongs of the following affirmative defense: (i) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (ii) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
- Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999) - Employer liability for conduct of supervisors
Employer liability for conduct of supervisors even when they neither knew nor should have known that the misconduct was occurring. However, an employer may not be held liable for the harassing conduct of co-workers unless it was aware (or should have been aware) of the misbehavior.
- EEOC v. Prospect Airport Services, No. 07-17221 (9th Cir. 2010) - Female on male co-worker sexual harassment
Men as well as women are entitled under Title VII to protection from a sexually abusive work environment. Having an employment policy is not enough to avoid liability for hostile work environment harassment. All complaints of harassment should be processed in accordance with your policy including prompt investigation and effective punishment for any instances of harassment that are found to have occurred.
- Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) - Vicariously liability
Employer liability for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff victim. As a result of this decision, women who experience sexual harassment at work must find out whether their employer has a sexual harassment policy or other grievance procedure in place. If the employee does not avail herself of the procedures and their protections, she must be prepared to show evidence that her decision was reasonable. Otherwise, she will be precluded from recovering on a claim of sexual harassment.
- Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998) - School district liability for teacher's actions
In this case involving teacher-student sexual harassment, the Supreme Court determined that for an educational institution to be liable for damages for sexual harassment under Title IX, an appropriate school official must have had knowledge of the harassment and, in the face of that knowledge, been deliberately indifferent.
- Herried v. Pierce County Transp., 90 Wn. App. 468 (1998) - Importance of agency's prompt response
Employee could not prove that she was the subject of gender-based discrimination, or that Pierce Transit was negligent in supervising an employee who allegedly discriminated. This case demonstrates how important it is for an agency to promptly and thoroughly respond to employee complaints of sexual harassment.
- Lockard v. Pizza Hut Inc., 162 F.3d 1062 (10th Cir., No. 97-7027, 12/14/98) - Harassment by customers
An employer may be held vicariously liable under Title VII of the 1964 Civil Rights Act for hostile environment sexual harassment created in the workplace by nonemployees, if it knows or should know of harassing conduct and fails to take prompt and appropriate corrective action. "An employer who condones or tolerates the creation of such an environment should be held liable regardless of whether the environment was created by a co-employee or a nonemployee, since the employer ultimately controls the conditions of the work environment" (at 1073-1074).
- MacDonald v. Korum Ford, 80 Wn. App. 877, 912 P.2d 1052 (1996) - Not all offensive acts constitute sexual harassment
An isolated indiscretion, although offensive and inappropriate, cannot support a claim of hostile work environment sexual discrimination. A claim of quid pro quo sexual harassment is not established unless there is evidence that the perpetrator of the unwelcome act sought sexual consideration from the victim.
- Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998) - Same-sex harassment
Workplace harassment can violate Title VII's prohibition against "discriminat[ion] . . . because of . . . sex," when the harasser and the harassed employee are of the same sex.
- Schonauer v. DCR Entertainment, 79 Wn. App. 808 (1995) - Disparate treatment based on gender
RCW 49.60.180 (2), (3) provides that it is an unfair practice for any employer to discharge or otherwise "discriminate against any person in compensation or in other terms or conditions of employment because of . . . sex." It makes actionable hostile work environment sexual harassment and quid pro quo sexual harassment. Even where sexual harassment is not involved, it makes actionable disparate treatment based on gender.
Personnel Policies, Procedures and Resolutions
- Bainbridge Island Policy (), 07/01/1993
- Bothell Policy No. 2.2 , 05/08/2008
- Federal Way Policy 3.2 (), 01/2012
- Lake Whatcom Water and Sewer District Personnel Policies Manual (), updated 2010
- Lynnwood Policy No.120 (), 02/08/2007
- North Beach Water District Employee Policies and Procedures Manual (), 05/2009 - See pages 25-27
- Puyallup Policy No. 2.4.1, 03/1992
- Seattle Resolution No. 30291 - Includes procedures for investigating complaints, 02/2001
- Tumwater Personnel Policy Manual Sec. 9 (), 01/2011
- Spokane Sexual Harassment Policy, Includes complaint and resolution forms, 12/2005
- Equal Employment Opportunity Commission Website - Portal to laws, regulations and guidance regarding sexual harassment
- Small Employers on Employer Liability for Harassment by Supervisors, U.S. Equal Employment Opportunity Commission, 04/01/2010 - This article examines two Supreme Court 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.
- Sexual Harassment in the Workplace: A Primer (), by Barry S. Roberts and Richard Mann, University of Akron Law Review, 29 No. 2 Winter 1996 - A relatively short, but quite comprehensive artlicle about sexual harassment
- Circuit Decision Reminds Employers of Need to Promptly and Effectively Address Complaints of Workplace Harassment, by Marck Busto, Brian M. Flock and M. Edward Taylor, MRSC HR Adviser, 10/2010