Courts determine whether an environment is sufficiently hostile or abusive by "looking at all the circumstances," including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Most recently, the Supreme Court explained that Title VII does not prohibit "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex."

A recurring point in the Court's opinions is that "simple teasing," offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment." These standards for judging hostility are designed to ensure that Title VII does not become a "general civility code."

Of recent note are two United States Supreme Court decisions and a decision from the United States Court of Appeal for the Fifth Circuit (which encompasses Texas, Louisiana and Mississippi) which clarifies the circumstances under which employers may be held liable for the harassing acts of their employees.

In Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998) and Burlington Industries, Inc. v. Ellerth, 524 US 742, 118 S.Ct. 2257 (1998), the United States Supreme Court held that an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.

The Court held that no defense is available to the employer when the supervisor's harassment culminates in a tangible employment action. A tangible employment action constitutes 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. However, where an employee has not been subjected to a tangible employment action, the employer may avoid liability by proving that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. In an opinion delivered on July 22, 1998, the United States Court of Appeal for the Fifth Circuit further clarified the circumstances under which employers may be held liable for the harassing acts of their employees. In Williamson v. City of Houston, 148 F.3d 462 (1998) the Fifth Circuit affirmed a $328,617 judgment in favor of a Houston police officer who was harassed by a coworker. The City attempted to defend the case on the basis that Ms. Williamson's reporting of the harassment to her supervisor was insufficient. The court, in rejecting this argument, held that the City of Houston was liable because the Houston Police Department had designated Ms. Williamson's supervisor as the person to whom to report complaints of sexual harassment. The Court further held that, "If the employer has structured its organization such that a given individual has the authority to accept notice of a harassment problem, then notice to that individual is sufficient to hold the employer liable."

These three cases should have a substantial impact on the ability of victims of sexual harassment to recover for the actions of their fellow employees. If you believe that you have been sexually harassed, please feel free to contact one of our attorneys experienced in the area of employment law at (800) 988-3514 for a free telephone consultation.