Employer Liability For A Supervisor’s Sexual Harassment Based On Management’s Knowledge

In Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), the U.S. Supreme Court held that employers are subject to vicarious liability for hostile work environment sexual harassment created by a supervisor with immediate (or successively higher) authority over the victim. However, the Ellerth Court also explained that employers can be liable for a supervisor’s sexual harassment when their own negligence is the cause of the harassment. A recent sexual harassment case filed by the U.S. Equal Employment Opportunity Commission in the U.S. District Court for the Southern District of Florida, EEOC v. Vacation Resorts Int’l, on behalf of Katrina Archer (Archer) illustrates the continuing availability of negligence as a separate basis for holding an employer liable for a supervisor’s sexual harassment.

In the lawsuit, the EEOC alleged that Vacation Resorts International, Inc. (VRI) was liable under Title VII of the Civil Rights Act of 1964 (Title VII) for the hostile work environment harassment of a supervisor. The EEOC alleged that during Archer’s employment with VRI, the supervisor subjected her to a sustained campaign of unwanted sexually harassing behavior, including sexual remarks, sexual propositions, touching her breasts, grabbing her head and pulling it towards his genitals, and exposing his penis. When Archer told the supervisor to stop engaging in the behavior, the supervisor purportedly told her that he was just “playing around.” The EEOC asserted that Archer repeatedly complained to a management-level employee about the supervisor’s sexually harassing behavior. Despite Archer’s complaints to management, VRI allegedly failed to take any remedial action to stop the harassment. Instead, according to the EEOC, the sexual harassment continued with increased severity. The EEOC further claimed that VRI violated VII by terminating Archer in retaliation for complaining about the sexual harassment.

Preventing Workplace Sexual Harassment & Relief To The Victim

In a Consent Decree, which was signed by U.S. District Judge Federico Moreno on February 10, 2016, VRI agreed to pay Archer $125,000 in damages to resolve the case. As part of the resolution, the EEOC required VRI to take specific actions designed to prevent and promptly correct any sexually harassing behavior in the workplace. In enforcing its mandate under Title VII to eradicate sexual harassment in the workplace and prevent retaliation against employees for complaining about sexual harassment, the EEOC required VRI to:

* Provide training to all managers and supervisors at the facility where Archer worked on sexual harassment, sex discrimination, and retaliation, including renewed training every two years. VRI was also required to video record the training and provide the EEOC with a copy of the video recording.
* Provide individual training to the supervisor who allegedly engaged in the sexual harassment and the management-level employee who purportedly received Archer’s sexual harassment complaints on sexual harassment, sex discrimination, and retaliation.VRI was also required to video record the training and provide the EEOC with a copy of the video recording.
* Provide the EEOC with a report twice a year, for a period of three years, regarding all employee complaints of sexual harassment, sex discrimination, or retaliation, including a description of all action taken by VRI in response to any complaint.
* Eliminate from Archer’s employment records any and all references relating to any of the facts which led to the filing of the lawsuit. VRI also agreed to provide Archer with a neutral letter of reference to any prospective employer who contacted VRI regarding Archer’s employment. 

Complaint To Management: Basis For Employer Notice & Liability

Under the facts as alleged by the EEOC in the lawsuit, the EEOC could have used a negligence theory to establish VRI’s liability for the supervisor’s sexual harassment. Negligence, as the Ellerth Court pointed out, “sets a minimum standard for employer liability” under Title VII. As observed by the U.S. Eleventh Circuit Court of Appeals in Dees v. Johnson Controls World Services, Inc., 168 F.3d 417, 421 (11th Cir. 1999), “the harassment can be ascribed to the employer’s negligence when the employer knew or should have known about the harassment and failed to take remedial action.” Courts, such as the Eleventh Circuit in Watson v. Blue Circle, Inc., 324 F.3d 1252, 1252 (11th Cir. 2003), have determined that an employer’s actual knowledge “is established by proof that management knew of the harassment.” A sexual harassment victim, as explained by the U.S. Tenth Circuit Court of Appeals in Turnbell v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001), can establish that management knew of the harassment “based on her reports of harassment to management-level employees.”

Under the facts as alleged by the EEOC in the lawsuit, the EEOC almost certainly would have been able to establish that VRI had actual knowledge of the sexual harassment because Archer complained to a management-level employee about the harassment. Once an employer has actual knowledge of sexual harassment, the employer is required by Title VII to take prompt and effective remedial effective action to stop the harassment. Based on its allegation that VRI took no remedial action after Archer complained to management about harassment, the EEOC almost certainly would also have been able to establish that VRI was liable for the supervisor’s sexual harassment because of its failure to take prompt and effective remedial action to stop the harassment. Instead of taking prompt remedial measures to stop the harassment and ensure the harassment did not recur, the EEOC alleged, VRI allowed the supervisor’s sexual harassment of Archer to continue despite its actual knowledge of the harassment. As explained the U.S. Ninth Circuit Court of Appeals in Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 875 (9th Cir. 2001), when an employer has actual knowledge of sexual harassment in the workplace but “undertakes no remedy, or where the remedy does not end the current harassment and deter future harassment, liability attaches for both the past harassment and any future harassment.”

We have extensive experience representing employees who have been the victims of sexual harassment in the workplace. If you have been the victim of sexual harassment, or you have been retaliated against for complaining about sexual harassment at work, please contact our office for a free consultation. Located in Ocala, Florida, we represent employees in employment law matters throughout Central Florida, including Alachua County, Lake County, Levy County, Marion County, Orange County, Pinellas County, Sumter County, and Volusia County.