Burlington Industries v. Ellerth (1998) addressed sexual harassment in the workplace, with the Supreme Court establishing guidelines for employers who hope to make an affirmative defense against such complaints. Specifically, under Burlington, employers must show that they exercised reasonable care in creating and putting policies and procedures into effect along with promptly remedying any sexually harassing behavior; they must also show that employees did not take reasonable steps to use the available procedures to address the situations or otherwise avoid the harms.
Burlington is noteworthy for school systems, because it encourages employers to create, disseminate, and enforce effective policies and procedures against sexual harassment in the workplace insofar as it allows them to escape responsibility for a supervisor’s sexually discriminatory actions under certain circumstances.
In Burlington, a female salesperson in Illinois alleged that a midlevel manager to whom her supervisor reported made repeated offensive remarks and gestures that led to her quitting the job. Although the salesperson was promoted at work, she said that she was forced to quit, in a situation known as constructive discharge, due to the manager’s unwelcome comments that referred to her breasts, her buttocks and legs, and how her job would be easier if she “loosened up” and wore shorter skirts.
On further review of a judgment in favor of the plaintiff, the Supreme Court affirmed that she had a claim for sexual harassment under these circumstances. The Court remanded the dispute to allow the parties to present more evidence about the alleged harassment and the company’s actions in remedying it. In remanding, the Court directed the trial judge to fully weigh the evidence and evaluate whether the employer should have been liable for the manager’s actions.
Burlington (1998) and its companion case of Faragher v. City of Boca Raton (1998) modified the circumstances under which employers can be responsible for sexual harassment under Title VII of the Civil Rights Act of 1964. Earlier cases placed sexual harassment claims into two categories: quid pro quo and hostile environment. Quid pro quo describes situations where an employment decision such as discharge, demotion, or undesirable reassignment is based on an employee’s response to requests that the employee engage in sexual conduct. Employers continue to be found strictly or automatically liable in quid pro quo cases. A hostile environment is present where there is unwelcome sexual conduct that unreasonably interferes with an employee’s work environment or creates an intimidating, hostile, or offensive working environment. Most courts do not hold an employer automatically liable for this type of discrimination. While the Burlington Court reasoned that these categories are still helpful in analyzing the claims, particularly for the threshold question of whether sexual harassment occurred, these conditions are not required.
Instead, in Burlington the Court established strict employer liability for all circumstances of supervisor sexual harassment, but it gave the employer an opportunity, though an affirmative defense, to show that it should not be held responsible when the employee suffered no tangible adverse employment impact such as a firing, failure to promote, reassignment with significantly different responsibilities, or a significant change in benefits. In order to utilize the defense and avoid liability for the harassment, the Court explained that an employer must prove two things. First, the Court maintained that an employer must exercise reasonable care to prevent and promptly correct any sexually harassing behavior. Second, the Court pointed out that it is necessary to consider whether an employee unreasonably fails to take advantage of any preventative or corrective opportunities that an employer provides to avoid harm.
Under the first part of this defense, the Court noted that evidence regarding the employer’s antiharassment policy and the available complaint process are relevant. The Court added that the second part of the test involves an investigation into actions an employee took in notifying an employer of the unwelcome behavior, including an examination of the employee’s utilization of the employer’s complaint procedures.
See also Civil Rights Act of 1964; Sexual Harassment; Sexual Harassment, Peer-to-Peer; Sexual Harassment, Quid Pro Quo