BY WILLIAM O. LUCKETT, JR.

In the midst of the independent counsel's ongoing investigation of President Clinton as well as the recent dismissal of the Paula Jones case, the American public has been subjected to an unrelenting barrage of misinformation concerning the state of sexual harassment laws in this country.

Generally speaking, under Title VII of the Civil Rights Act, there are two avenues an individual may pursue when bringing a sexual harassment claim against an employer. An employee may sue under the theory of quid pro quo sexual harassment which occurs when submission to or rejection of an employer's sexual advances is made a condition of the individual's continued employment. In this scenario an employer either promises an employee some sort of employment benefit in exchange for sexual favors, or punishes an employee for refusing to comply with a request for sexual favors.

To prove this kind of claim, an employee must establish that he/she suffered a tangible detriment as a result of her employer's sexual conduct. For instance, he/she must show that he/she was either terminated or failed to gain a promotion because he/she did not acquiesce to the employer's advances.

The other type of Title VII sexual harassment occurs when an employer's conduct (via the actions of its agent) is so serious that it creates a hostile work environment by unreasonably interfering with the employee's ability to adequately perform job duties. In this situation, an employer's unwelcome verbal or physical conduct must be so severe or pervasive that it constructively forces the employee out of employment. Hostile work environment sexual harassment is by far the most commonly litigated form of sexual harassment in the federal court system today.

Prior to the recent Supreme Court decisions of Burlington Industries v. Ellerth and Faragher v. Boca Raton, an employer could be held liable for the sexual harassment of its agents in only two situations. First, a company could be held liable for its agent's actions if it knew or should have known of its agent's conduct and failed to take immediate corrective action. And second, an employee could successfully sue her employer if she could prove that the supervisor committing the alleged sexual conduct acted within the scope of his employment or in his capacity as an agent of the employer.

Earlier this summer, the Supreme Court significantly altered this standard by its decisions in Burlington v. Ellerth and Faragher v. Boca Raton. In the first case, Kimberly Ellerth, a salesperson, sued her employer under Title VII alleging that she was subjected to constant sexually degrading remarks and conduct for a fifteen month period which ultimately caused her to leave her job. During this period, Ellerth admittedly never informed anyone in management about her supervisor's conduct, despite knowing that her employer had a policy in place against sexual harassment.

In Faragher, two city lifeguards were allegedly subjected to abusive conduct by two of their supervisors. The lifeguards brought this to the attention of another supervisor before leaving their jobs and filing complaints against their employer.

In both cases, the Court held that under Title VII, an employee who refuses unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover against an employer without showing that the employer is negligent or otherwise at fault for the supervisorÕs actions. In other words, the Court interpreted Title VII to mean that an employer can be held liable for sexual harassment even though the employer is not aware or should not have been aware of the alleged sexual conduct of its supervisor. These decisions represent a considerable change in sexual harassment law under Title VII.

Although these rulings obviously broaden an employer's exposure to sexual harassment liability, the Court does appear to minimize their effect by stating that an employee must take advantage of any protective measures or company policies instituted to prevent sexual harassment in order to successfully bring a Title VII action. Therefore, if an employee knows of a policy in place at the time of the alleged conduct, she must take advantage of its measures. Otherwise, her Title VII claim is doomed to fail.

The consequences of this new interpretation of the law may be far reaching. First, companies will be forced to implement stronger policies to help curb sexual harassment in the workplace. These policies must not only offer employees a means of reporting sexually abusive behavior, but they must also encourage or even mandate that associates of the company report such behavior immediately. Many companies already have these types of preventive measures in place, however in light of the recent decisions handed down by the Supreme Court, employers should reevaluate and strengthen their policies if needed.

It must be pointed out that the newly decided Supreme Court cases still impose a duty on employers to correct sexually abusive behavior once the employer learns of its occurrence.

The Ellerth and Faragher cases may potentially lead to a number of actions where liability is imposed on an employer even if the employer was not and should not have been aware of its employeeÕs conduct despite any preventive measures it may have instituted to eliminate such behavior. Such an imposition of vicarious liability may lead to many unfair decisions against employers. Nevertheless, these decisions will undoubtedly limit sexually harassing conduct in the workplace by forcing companies to implement stronger policies to combat this kind of behavior. DBJ

William O. Luckett, Jr. is an attorney in Clarksdale.

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