Employer Liability for Sexual Harassment in Akron, Ohio Workplaces
Nobody is allowed to sexually harass you at work, whether the harasser is a co-worker, a customer, your boss, or even the owner of the company. If you are facing sexual harassment at work in Cleveland, Akron, elsewhere in Summit County, or anywhere in Ohio for that matter, the employment law attorneys at Bolek Besser Glesius LLC have probably represented someone in your situation before.
If you have been sexually harassed at work, either your employer or the harasser, or both, might be liable to you for the harms they caused. Determining legal liability for sexual harassment can be a complicated legal question however. The best way to evaluate your rights and options is by consulting with an experienced Ohio sexual harassment lawyer.
Ohio Workplace Sexual Harassment Laws
Under Ohio law, sexual harassers are personally liable for their unlawful behavior. Among other things, Ohio Revised Code section 4112.02(J) makes it illegal for any person to engage in unlawful sexual harassment. That means if you are being sexually harassed in an Ohio workplace, you have the right to sue the harasser and recover for the harms he or she has caused you. Unlike Ohio law, however, the federal anti-sexual harassment law, Title VII of the Civil Rights Act of 1964, does not allow victims to sue individuals for sexual harassment.
Whereas only Ohio law permits victims of sexual harassment to sue the harasser individually, both Ohio and federal law hold that employers will be liable for sexual harassment in the workplace if certain conditions are met. Figuring out whether those conditions have been met usually requires the assistance of an attorney.
The legal standard used to determine whether an employer will be liable for sexual harassment in the workplace depends on two things. The first is whether the harasser qualifies as a “supervisor.” The second is whether the harassment resulted in what is known as a “tangible employment action.”
When used in the sexual harassment context, the term “supervisor” becomes a little misleading. Most of us rightly think of supervisors as our immediate boss—the person to whom we directly report. For purposes of a sexual harassment case, however, the term “supervisor” has a very specific meaning. Under a 2013 Supreme Court ruling, the term refers to an individual who has the authority to take “tangible employment actions against the victim.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013). In turn, a “tangible employment action” is defined by the Supreme Court as a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at 2442. Of course, many employees who supervise others will not have the authority to fire, hire, and take other significant employment actions towards employees. As a result, they are not deemed “supervisors” for purposes of a sexual harassment case.
If a harasser is a supervisor and the harassment results in a tangible employment action, the employer will be automatically liable if sexual harassment is in fact proven. In those situations, while liability is often hard-fought by the employer, the legal question over liability is fairly straightforward.
But not all sexual harassment by a supervisor results in the employee being fired, or otherwise suffering some tangible employment action. In many cases, a supervising harasser creates a “hostile environment,” but the victim remains employed. In these “hostile environment” cases (i.e. where there is no tangible employment action), the employer can still be liable for supervisor harassment—just not automatically. The employer can avoid liability if it can prove an affirmative defense known as the Faragher/Ellerth defense. That defense requires an employer to show that it exercised reasonable care to prevent and promptly correct any harassing behavior, and that the victim unreasonably failed to take advantage of any preventive or corrective opportunities that were provided. The defense is typically asserted in situations where the employee failed to report the sexual harassment.
In cases where the harasser is a co-worker, customer, client, or anyone else who is not a “supervisor,” a different standard of employer liability for sexual harassment in Akron workplaces applies. In those situations, the employer is liable if it was “negligent” in permitting the harassment to occur or failing to stop it. The negligence standard can be more difficult to prove for sexual harassment victims, although that is not always the case.
There are a variety of ways for victims of sexual harassment to show the employer was negligent. For instance, whether the employer knew or should have known of the harassment will always be relevant. Some other examples of negligent behavior that will make employers liable for harassment in Akron or Cleveland workplaces include: failure to monitor the workplace; failure to respond to complaints; failure to provide a system for complaining; or, any action or inaction that effectively discourages complaints. And while the “supervisor” standards of liability do not apply, an important factor will be the nature and amount of authority the harasser had over the victim and others.
No matter who the harasser is, the best way to get sexual harassment to stop is to report it. On the other hand, because of the differing standards of employer liability, failing to report might mean the victim will not be able to recover from the employer. For these reasons and others, victims of sexual harassment are well-advised to speak up when they are being harassed.
Contact an Ohio Sexual Harassment Attorney Today
It is a scary prospect to face not only your harasser but your employer as well. The employment discrimination attorneys at Bolek Besser Glesius LLC have helped many victims of sexual harassment in Cleveland, Akron, Summit County, and throughout Ohio when faced with that challenge. If you are ready to stand up to sexual harassment at work, we might be able to help you too. Contact us today for a free consultation.