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III. UPDATE: 1998 CHANGES IN THE LAWWhy the new rules are importantFirst, new developments in the law require all employees with supervisory responsibility to understand what conduct constitutes sex harassment and the serious consequences attached to that conduct. Secondly, individuals who feel they are being harassed now need to understand that unreasonable failure to report complaints to University official possibly may preclude other legal remedies. New rules govern workplace supervisors' liabilityIn June, 1998, the United States Supreme Court issued two decisions which significantly increased liability for sex harassment by a supervisor. Employees no longer have to prove that their employers were negligent or otherwise at fault for a supervisor's sex harassment to hold the employer liable. Cases of supervisory sex harassment with a tangible detrimentThe Supreme Court has ruled that an employer will be held strictly liable if a supervisor is responsible for either "quid pro quo" or "hostile environment" harassment which resulted in some tangible employment action. Such actions include discharge, demotion, poor performance reviews, failure to promote, or reassignment with significantly different job duties. Strict liability means that the employer has no defense to the lawsuit, regardless of whether the employee reported the harassment or whether the employer took remedial steps to end it.
Cases of supervisory sex harassment with no tangible detrimentIf either "quid pro quo" or "hostile environment" harassment is proven, but there was no adverse employment action taken, the employer will also be liable, subject to a possible defense. To successfully establish the defense, the burden will be on the employer to show both: a) that it exercised "reasonable care" to prevent harassment and to "correct promptly" any sexually harassing behavior; and b) that the employee-complainant "unreasonably failed" to take advantage of any preventative or corrective opportunities the employer provided.•Note: Non-supervisory workplace harassment When harassment occurs in the workplace but outside of the supervisory context (for example among co-workers), the University will be liable if it knew or should have known (as in the case of obvious, pervasive conduct) about the harassment and failed to take prompt remedial action. Knowledge of harassment by a supervisor will be imputed to the University. This is not a new rule; it is why it is mandatory for a supervisor or person otherwise in a position of responsibility to report harassment to the President's Legal Office. Same sex harassmentThe Supreme Court ruled in 1998 that workplace sex harassment includes same sex harassment. Sex harassment is not limited to males harassing females. This is not a change for the campus. The University's policy has included same sex harassment since 1987.Sex harassment in the academic (non-employment) settingThe Supreme Court also ruled in 1998 that under Title IX of the Education Amendments of 1972 an educational institution will be liable for sex harassment by a teacher once it has actual notice of the misconduct and is deliberately indifferent to it.
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