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;
— 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:
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.
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:
An employer may also be held liable for harassment by a supervisor if:
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Supreme Court case law and Equal Employment Opportunity Commission (EEOC) guidelines indicate that for an employer to show it exercised reasonable care, it should:
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.
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