Legal FAQs

The United States Supreme Court has interpreted Title VII to require employers to maintain a workplace free of discrimination. The duty exists even when the complaining witness wants to drop the case because the employer has a responsibility to eliminate harassment for the benefit of all employees.

So what does this mean for employers?
Here are a few frequently asked questions:

1. Is an employer strictly or vicariously liable for the sexually harassing conduct of a supervisor?

Under Title VII, an employer is vicariously liable for actionable discrimination caused by a supervisor, but may raise as an affirmative defense the reasonableness of the employer's conduct as well as that of the plaintiff victim.

In CA, a supervisor is strictly liable for actionable discrimination by a supervisor; the CA Supreme Court has determined that Title VII's affirmative defense is unavailable under California law.

2. When can punitive damages be applied?

The U. S. Supreme Court has held that a supervisor's intentionally discriminatory conduct while in the course of his employment is sufficient to award punitive damages, if the court has scrutinized an employer's motives and found them to be improper. In English, this means a plaintiff will be awarded punitive damages if a court discovers that the employer created and maintained a discriminatory environment by failing to take preventative, corrective or remedial measures.

3. If I provide an anti-discrimination/harassment policy to my employees, is that sufficient to insulate me from liability?

No! Both state and federal courts require continuing training to demonstrate a good faith effort to comply with anti-discrimination statutes. Also, don't forget that if misconduct is alleged, the courts demand that the complaint is thoroughly and impartially investigated in a timely manner. Accordingly, the two-prong approach scrutinized by the courts requires an employer to demonstrate both a preventive maintenance and training program in addition to taking swift remedial action should an allegation arise.