First, the Court clarified that an employer is always liable for a supervisor's harassment if it results in a tangible employment action (e.g., firing, demotion, or failure to promote).

However, if the employer has not taken any tangible employment action against the employee, the Court held that an employer may be able to avoid liability or limit damages by proving that:

— It exercised reasonable care to prevent and promptly correct any harassing behavior;

AND

— The harassed employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

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When determining whether an employer can use this affirmative defense, you must consider four factors:

1. Was a "tangible employment action" taken against the complainant/employee?
2. Is the alleged harasser a supervisor?
3. Did the employer exercise reasonable care to prevent and correct harassing behavior?
4. Did the employee unreasonably fail to take advantage of preventive or corrective opportunities provided by the employer?

1. Was a "tangible employment action" taken?

Tangible employment actions are those that significantly change an employee's employment status. Such actions include firing, promoting, demoting, or reassigning the employee.

If a tangible employment action was taken, the affirmative defense is not available.

2. Is the alleged harasser a supervisor?

According to the EEOC's guidelines, a supervisor is an individual who has “immediate (or successively higher) authority over the employee."

The harassing supervisor's authority must be great enough to assist him or her implicitly or explicitly in carrying out the harassment. The determination as to whether a harasser has such a degree of authority is based on his or her job function, not the job title, and must be based on the specific facts of the situation.

An individual qualifies as an employee's supervisor if:

• The individual has authority to undertake or recommend tangible employment actions affecting the employee. Even if such a person can only recommend tangible employment actions regarding an employee and does not have the final say, he or she is still considered that employee's supervisor.
• The individual has authority to direct the employee's daily work activities. Even if the individual does not have the authority to take or recommend a tangible employment action, if he or she has the authority to increase the employee's workload or assign undesirable tasks, that person's ability to commit harassment is enhanced, and the person is considered a supervisor.

An employer may also be held liable for harassment by a supervisor if:

• The employee reasonably believed that the supervisor had authority over him or her; or
• The employee reasonably believed the supervisor could influence a supervisor within the employee's supervisory chain of command.

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3. Did the employer exercise reasonable care to prevent and correct harassing behavior?

Supreme Court case law and Equal Employment Opportunity Commission (EEOC) guidelines indicate that for an employer to show it exercised reasonable care, it should:

• Have in place a policy to prevent sexual harassment (or any other unlawful harassment).
• Ensure that the policy identifies individuals to contact and/or other methods of making a harassment complaint. (Be sure that there is more than one avenue for making complaints.)
• Conduct sexual harassment training for supervisors and employees. Make all employees aware of the policy and how it works.
• Publicly denounce harassment to its employees.
• Promptly and effectively investigate complaints of harassment and take appropriate action.

In tomorrow's Advisor, we’ll look at the fourth prong of the test—the employee's obligation to take advantage of preventive or corrective opportunities provided by the employer—and we’ll introduce you to an exciting new online all-in-one training resource.