A United States Court of Appeals recently reviewed some of the basic principles applicable to hostile environment sexual harassment cases.

The Court noted that a hostile working environment is a single unlawful practice under Title VII of the Civil Rights Act of 1964. A charge of discrimination based on such a practice covers all events during that hostile environment, if the charge is filed within 300 days (180 days in some states) of the last act alleged to constitute the discriminatory working condition.

Hostile working conditions at a single place of employment are a single unlawful practice. Title VII creates responsibilities for employers as entities. Employers may not turn a practice that an employee believes to be a single practice into two or more distinct practices by relying upon how it chooses to organize its workforce into divisions or departments.

The Court observed that most employers allow plant managers and human resource departments to control working conditions plant-wide. When a single managerial staff or chain of command decides to permit the men in the workplace to make life miserable for the women, that is a single unlawful practice whether or not a particular woman moves from one operating unit to another within the same plant.

The Court also stated that even if an employer takes steps to try to eliminate hostile work environment conditions, the employer’s actions have no impact upon the duration of the unlawful practice challenged by the employee or to the evidence that an employee may offer when alleging hostile work environment sexual harassment violations. Rather, evidence of corrective actions taken by the employer goes only to the issue of whether the employer is responsible for the conduct alleged to constitute the hostile working environment. Many unwelcome acts will not be imputed to the employer if the employer responds reasonably to discriminatory conditions. An employer can be liable where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII.

If an employee unreasonably fails to take advantage of preventive or corrective opportunities for discrimination, and the employer consequently does not know about the problem, then the employer cannot be held liable.

Nevertheless, the Court noted that even if the employer raises these defenses, an alleged victim of hostile environment sexual harassment can still proceed with the claim and introduce evidence to support it unless the employer’s evidence concerning its defenses is so overwhelming that there can be no doubt that the employer should prevail.

This case reminds all employers that it is important to have a clear written policy concerning sexual harassment, ensure that the policy is communicated to all employees, that management receives training on the subject of sexual harassment, that allegations of sexual harassment are taken seriously and promptly investigated, and that any instances of sexual harassment are dealt with promptly and decisively by the employer.

Russell J. Thomas, Jr.
Attorney at Law
THOMAS & ASSOCIATES
2172 Dupont Drive, Suite 203
Irvine, California 92612;
Tel: (949) 752-0101
Fax: (949) 257-4756
Email: rthomas@rjtlawfirm.com
Web: http://www.rjtlawfirm.com

J.D., Harvard Law School, 1967

Specializes in Employment Law and Litigation;
Offices in Southern California (Los Angeles and Orange County)