High Court To Decide When Employer Liable If Bosses Harass Workers

Paving the way for a key ruling on sexual harassment, the Supreme Court said Friday that it will decide when an employer can be held liable if its supervisors harass workers.

The court agreed to hear a case by Beth Ann Faragher, a former lifeguard in Boca Raton, Fla., who sued the city after she said two of her supervisors repeatedly sexually harassed her. She maintained that the city violated federal law because it required her to work in a hostile work environment.

Faragher prevailed in the trial court, but an appellate court in Atlanta ruled that the city couldn’t be held responsible because it didn’t know about the alleged harassment.

Faragher, who now is a lawyer in Denver, had complained about the harassment to her immediate supervisor, but he didn’t pass the complaint along.

“I’m really excited that the Supreme Court is taking it,” Faragher, 32, a public defender, said of the court’s announcement that it would hear her case. “I think (the city) knew what was going on.”

If the ruling against Faragher is allowed to stand, her lawyer said Friday, employers could avoid liability for sexual harassment “by simply keeping their head firmly in the sand.”

“It permits an employer to do nothing whatsoever to combat sexual harassment and then, when it occurs, say, ‘Gee, nobody told us,”’ said William Amlong, Faragher’s attorney in Fort Lauderdale. “It gives an employer a way out by playing like the three monkeys: Hear no evil, see no evil, speak no evil.”

The appeals court held in April that an employer is not liable for a supervisor’s sexual harassment unless it knew or should have known about the misconduct and did nothing to prevent it.

Other federal appeals courts have put more of a burden on employers to determine if sexual harassment is taking place and, therefore, have made it easier for workers to hold employers liable if they are sexually harassed by supervisors.

For example, a federal appeals court in Richmond, Va., has held that an employer can be liable for a supervisor’s sexual harassment if he exercised “significant control over the plaintiff’s hiring, firing or conditions of employment.”

Faragher likely would have won if that standard had been used in her case, since one of the supervisors was high-ranking.

To that end, the case is important because it gives the court an opportunity to clarify when employers are liable if employees allege they are forced to work in hostile work environments.

The court has ruled previously that sexual harassment that creates a hostile work environment can violate federal civil rights law. The law, Title VII of the Civil Rights Act of 1964, prohibits sex discrimination on the job.

The court already has one sexual harassment case on its docket this term. In December, it will hear arguments on whether the federal law prohibits same-sex sexual harassment.

Faragher was among four to six female lifeguards who worked for the city of Boca Raton in the late 1980s. The remaining 40 or so lifeguards were men, as were the two supervisors.

She quit in 1990 to go to law school and sued two years later, alleging the supervisors subjected her to repeated harassment that included a slap on the buttocks, offensive language and simulated sex.

“It was a good job, except for the fact that we had to deal with those two people,” Faragher said. “Those two made it really hard for the women who worked on the beach.”

She said supervisor Bill Terry touched her shoulders and waist on several occasions, patted her thigh once and slapped her on the rear end. Supervisor David Silverman allegedly made offensive comments and engaged in offensive behavior in her presence.

Faragher won $10,000 in damages from the two and nominal damages of $1 from the city. She appealed, as did the city.

The U.S. Court of Appeals for the 11th Circuit reversed that ruling on a 7-5 vote, with several strongly worded dissents.

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