A Tale of Two Sexual Harassment Laws - Part II
By David R. Friedman, Friedman Law Firm
Recent newspaper headlines have brought to the public’s attention the area of work place sexual harassment. As mentioned last month, Wisconsin’s sexual harassment law has taken a different path from federal law. The clearest divergence is in the area of the employer’s ability to defend itself by the use of an affirmative defense.
Where the allegation is against the supervisor, the issue is whether the employer is liable for the supervisor’s actions or behavior. The employer can be held liable under the concept of vicarious liability. In general, a person is only liable for the person’s own tort. “Vicarious liability under respondeat superior is a form of liability without fault - the imposition of liability on an innocent party for the tortious conduct of another based upon the existence of a particularized agency relationship. As such, it is an exception to our fault-based liability system, and is imposed only where the principal has control or the right to control the physical conduct of the agent such that a master/servant relationship can be said to exist.” Kerl v. Dennis Rasmussen, Inc., 2004 WI 86, 273 Wis.2d 106, 112, 682 N.W.2d 329. In layman’s language, this means that liability is imposed on the employer for the actions of its supervisors.
The United States Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2268 (1998) and Faragher v. City of Boca Raton, 542 U.S. 775, 118 S.Ct. 2275 (1998) established an affirmative defense for the employer where the allegation was that a supervisor or co-worker was the cause of the sexual harassment. The Court looked for a way to relieve the employer from liability under the vicarious liability concept. It did so by providing the employer with an affirmative defense in certain situations.
To prevail on the affirmative defense, based on the alleged harassment by supervisors, the employer has to prove by a preponderance of the evidence that (1) it exercised reasonable care to prevent and promptly correct any harassment and (2) the employee unreasonably failed to take advantage of any preventive and corrective opportunities provided by the employer or to otherwise avoid the harm.
In rejecting the affirmative defenses established by the U.S. Supreme Court, LIRC stated that under Wisconsin’s law, “the employer is liable for sexual harassment by its agent whether or not it addressed the matter and without regard to whether the complainant availed herself of opportunities to complain. There is no affirmative defense available to the employer where the sexual harassment is perpetrated by its agent.” Sanderson v. Handi Gadgets Corp , March 31, 2005.
So what does all of this mean for the HR professional? The decision will have minimal impact on how a HR professional will handle an employee’s sexual harassment complaint. Eradicating the problem of sexual harassment is not dependent on whether the employer can present an affirmative defense. Rather, this split between the two laws may make it more difficult for the employees and their representatives to choose in which forum they will pursue a sexual harassment claim. State law makes it harder for the employer to avoid liability for a supervisor’s action while federal law provides for compensatory and punitive damages. Only time will tell what will be the ultimate result of having to live under two different laws.
The opinions expressed or implied are those of the author and may not represent the official position of GMASHRM. This article is intended for general information purposes and highlights recent changes and developments in the legal area. This article does not constitute legal advice. The reader should consult legal counsel to determine how this information applies to any specific situation.
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