Finding the Facts - Disciplinary and Harassment Investigation

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P RINCIPLES L IMITING D AMAGES IN H ARASSMENT C ASES

C ASES P ROVIDING A C OMPLETE OR P ARTIAL D EFENSE OR R EDUCING D AMAGES IN H ARASSMENT C ASES The cases discussed below further demonstrate the importance of a prompt and thorough investigation to defending federal and state harassment claims. T ITLE VII OF THE C IVIL R IGHTS A CT OF 1964: E LLERTH AND F ARAGHER A pair of U.S. Supreme Court decisions make it easier for employees to assert sexual harassment claims against their district employer, and harder for employers to avoid trial through summary judgments. But, the decisions also spell out the steps employers can take to successfully defend against many such claims. In Burlington Industries, Inc. v. Ellerth 218 , Kimberly Ellerth quit her job after 15 months as a salesperson in one of Burlington Industries’ many divisions, allegedly because she had been subjected to constant sexual harassment by one of her supervisors, Ted Slowik. Slowik was a mid-level manager who had authority to hire and promote employees, subject to higher approval, but was not considered a policy-maker. Against a background of repeated boorish and offensive remarks and gestures allegedly made by Slowik, Ellerth places particular emphasis on three incidents where Slowik’s comments could be construed as threats to deny her tangible job benefits. Ellerth refused all of Slowik’s advances, yet suffered no tangible retaliation and was, in fact, promoted once. Moreover, she never informed anyone in authority about Slowik’s conduct, despite knowing Burlington had a policy against sexual harassment. In filing this lawsuit, Ellerth alleged Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII. The District Court granted Burlington summary judgment. The Seventh Circuit reversed. In upholding the Court of Appeals’ reversal of the granting of summary judgment to Burlington, the Supreme Court laid down the following rules to determine employer liability for the sexual harassing conduct of its supervisors:

An employer is liable in all cases where the supervisor’s harassment results in an adverse employment action, such as firing, failing to promote, reassigning or other actions causing a change in benefits or terms of employment. An employer is also liable for a supervisor’s conduct even in the absence of any adverse employment actions, but in that event may effectively defend against liability by proving “(a) that the employer exercised reasonable care to prevent and correct

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