Submitted by: Pamela F. Hutchins, Esq., SPHR, SHRM-SCP and Laurie R. Jones, Esq., SPHR, SHRM-SCP, Employment Practices Solutions @epspros

In 2018, twenty years after the landmark 1998 decisions Farragher[1] and Ellerth,[2] in the viral #MeToo movement and high-profile harassment complaints splashed across the media, many feel a tidal wave of change; a movement to claim equality and fairness in the workplace. Those of us who have been working to eradicate employment discrimination for years recognize that these are not new complaints or issues. The publicity and outrage over the latest wave of allegations show how far we have come in understanding and opposing harassment, and that is a great thing. We salute the opponents of employment discrimination, from long before we began working in this field, through the twenty-plus years’ worth of complainants we have witnessed firsthand, to those speaking up today, and we thank you for your courage. But while the cultural movement that is afoot is important and significant, the necessary actions to maintain a respectful workplace free of discrimination and harassment are unchanged since Employment Practices Solutions, Inc. (EPS) began assisting employers.

While the problem of sexual harassment is age-old, it was not formally illegal until relatively recently. Certainly, the Civil Rights Act of 1964, and Title VII specifically, barred employment discrimination “on the basis of sex,” but it was not until 1977 when quid pro quo sexual harassment was identified as a violation of Title VII and three years later, in 1980, when the Equal Employment Opportunity Commission (EEOC) identified hostile workplace harassment as proscribed by the same law. Although the U.S. Supreme Court affirmed the 1977 and 1980 principles in 1986, courts continued to hone and define the theories as well as the standard for liability. These decisions culminated in the Farragher and Ellerth decisions, which held a strict liability for employers in cases of hostile work environment under certain circumstances and laid out a two-part defense for employers when a supervisory level employee was the harasser.

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[1] Faragher v. City of Boca Raton, 524U.S. 775, 118S. Ct. 2275 (1998).

[2] Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998).