Can my employer be held liable for my supervisor or co-worker's sexual harassment?

Many people believe that their employer is automatically liable if their supervisor or co-worker sexually harasses them. The U.S. Supreme Court has held, however, that an employer cannot be held vicariously liable for sexual harassment by a supervisor unless the employee suffered a tangible employment action or the employee reported the harassment to management and management failed to take reasonable action.  See Burlington Industries, 524 U.S. 742 and Faragher, 524 U.S. 775. Stated differently, if you haven't suffered a tangible employment action such as being terminated, transferred to an undesirable location or given an undesirable work schedule, you will need to prove that you reported the harassment to management and management failed to take reasonable action to prevent further harassment in order to state a cause of action against your employer.  Similarly, if you're sexually harassed by your co-worker (someone on the same level or below your position), your employer is only liable if you have reported the inappropriate behavior and the employer fails to take protective action (or if you can prove that the employer encouraged such behavior).

It's normal for an employee to try to ignore inappropriate sexual behavior in hopes that it will eventually stop.  But this is rarely successful because harassers are only encouraged to continue their behavior when they get away with it and are not held accountable.   Therefore, for your own protection, it is important to report inappropriate sexual behavior to management at its first instance.  There is no downside to reporting the inappropriate behavior to management because it is a violation of the Civil Rights Act for an employer or supervisor to take an adverse employment action against you (that is, retaliate) for reporting inappropriate behavior, even if your complaints cannot be substantiated or proven. 

Here are some simple examples:  Example No. 1: Mary's supervisor, Jacob, makes inappropriate sexual comments to Mary on a daily basis.  Mary needs her job, so she does not report Jacob to management or HR.  Encouraged by the fact that Mary hasn't complained to management, Jacob's behavior becomes progressively worse to the point that he begins touching Mary and making sexually lude comments.  Mary cannot take it anymore and quits her job.  Mary should be able to hold her employer liable for Jacob's conduct.

Example No. 2:  Mary's supervisor, Jacob, makes inappropriate sexual comments to Mary on a daily basis.  Mary reports Jacob's harassing behavior to HR.  HR fails to take any action and Jacob continues his inappropriate conduct.  Mary should be able to hold her employer liable for Jacob's conduct.

Example No. 3:  Mary's supervisor, Jacob, makes inappropriate sexual comments to Mary on a daily basis.  Mary needs her job, so she does not report her supervisor to management or HR.  After Mary rejects Jacob's sexual advances, Jacob drastically reduces Mary's hours.  Mary should be able to hold her employer liable for Jacob's conduct because Jacob took a tangible employment action against Mary by reducing her hours. 

Example No. 4:  Mary's male co-workers often make sexual comments and tell her dirty jokes.  At first, Mary thinks the co-workers' conduct is just innocent kidding around or flirting.  Mary doesn't want to cause trouble or become unpopular, so she doesn't report the inappropriate conduct to management.  Encouraged by Mary's apparent acceptance of the inappropriate behavior, one of her co-workers corners her in the back room after closing and attempts to sexually assault her.  Mary will not be able to hold her employer liable because she did not seek HR's assistance when the harassment began.

Example No. 5:  Mary's supervisor, Jacob, makes inappropriate sexual comments to Mary on a daily basis.   Mary reports Jacob's conduct to HR. HR investigates Mary's complaint and finds that her complaints cannot be proven because Jacob denies making the inappropriate comments and there are no witnesses.  No action is taken against Jacob.  The next week, Jacob terminates Mary's employment because "it's just not working out."  Mary can bring an action against her employer for retaliating against her for complaining about Jacob's inappropriate behavior.  

CONCLUSION:  It's important to report sexual harassment to management as soon as it begins.  In order to substantiate your complaints, we recommend that you begin keeping a daily diary or journal of the harassment.  You should record the date, time and location of the harassment and describe the harassment in detail, including quotes if possible.  Also, it is important to describe in your diary or journal how the harassment made you feel, such as embarrassed, depressed, angry, worthless, guilty, etc.  If the harassment affects other parts of your life, write that down too. For example, if you become distant from your spouse or partner or impatient with your kids, write it all down.

We understand that this may be confusing, especially if you're dealing with a sexually hostile workplace.  The sexual harassment lawyers at Kuhn Firm are happy to discuss your circumstances with you as soon as they occur.  Feel free to contact us at 912-574-4373.

can i secretly Audio record my supervisor's harassment?

Harassers usually do their harassing when others aren't present so they don't get caught.  This can make it difficult to prove that the harassment actually occurred.  For this reason, victims of harassment often wonder if they can secretly record their supervisor's harassment.  The answer to this question is not simple.  First, Georgia is a one-party consent state, meaning that only one party to a conversation needs to consent to the audio recording for it to be legal.  Thus, if you are having a conversation with someone, you are generally allowed to audio record the conversation without the other person's knowledge or consent because one person (you) has consented to the recording.  Please note, however, that Georgia law does not permit a person to video record or photograph another in "a private place and out of the public view."  What constitutes a "private place out of the public view" is not defined but it arguably does not include an office inside a business. 

The more difficult question is whether you can secretly record your supervisor when your employer has a rule or policy forbidding recording without the consent of all participants.  At least one court has held that an employer can fire an employee for violating a non-recording policy.  For example, assume Mary's employer has a no-recording rule.  Mary's supervisor, Jacob, has been harassing her daily.  Jacob always does his harassing when he and Mary are in the stock room with no one else present.  In order to prove that Jacob has been harassing her, Mary secretly records Jacob harassing her in the stock room.  When HR finds out, they fire Mary for violating the no-recording policy.  Under these circumstances, a court could find that the employer had a valid, non-discriminatory, reason for firing Mary. You may still have a claim against your employer for sexual harassment.

Whether you can secretly record your supervisor needs to be determined on a case-by-case basis.  If you are in this situation, you should first determine whether your employer has a no-recording rule.  If there is no such rule, you can secretly audio record your conversations with your harasser.   If your employer has a no-recording rule, you should contact our office to discuss the issue before recording.  

What is a "hostile Workplace"?

We often receive calls from people claiming that they are employed in a "hostile workplace" because their supervisors or co-workers are mean to them or otherwise treat them poorly.  Unfortunately, the civil rights laws prohibiting hostile workplaces only apply to workplaces that are hostile because of discriminatory behavior.  In other words, if you work in a job where your boss constantly yells at you and/or berates you because he or she perceives your work product to be poor or he or she just doesn't like you, you may work in a hostile workplace, but you won't have a civil rights claim unless you are being discriminated against based on a protected category, such as sex, race, nationality, religion.  For example, if you are constantly sexual harassed or discriminated against based on your race, you should call us because you may have a valid claim for hostile workplace.