مسئولیت آزار و اذیت جنسی در دفاتر قضایی

Abstract This article focuses on sexual harassment in criminal justice agencies from a legal perspective. The article briefly describes sexual harassment cases that address agency liability decided by the United States Supreme Court, discussing the standards of liability articulated in Burlington Industries Inc. v. Ellerth (1998), Faragher v. City of Boca Raton (1998), and Meritor Savings Bank v. Vinson (1986). A more precise understanding of when agencies are liable for the actions of their subordinates is developed through an examination of lower federal court decisions. Trends in the law are identified, as case law is categorized according to harassment by supervisors and co-workers. The article concludes by exploring the policy implications flowing from court decisions and by calling for further research on this troubling aspect of the criminal justice workplace.

Introduction Title VII of the Civil Rights Act (1964) made employers liable for sexual harassment within their agencies. Despite the existence of this law for over four decades, ample evidence suggested that sexual harassment was a significant problem in the criminal justice workplace. Martin (1980) conducted one of the first studies on the incidence and nature of sexual harassment in a police agency and found that policewomen were subjected to a wide range of sexual indignities, including comments about their personal appearance, sexual teasing, crude jokes of a sexual nature, and invitations to engage in various sex acts. Wong (1984) studied the experiences of policewomen in a large metropolitan police department and reached similar conclusions. Other researchers also reported that policewomen and applicants continued to be exposed to sex discrimination and sexual harassment on a frequent basis (e.g., Hunt, 1990, Morash & Haar, 1995 and Timmons & Hainsworth, 1989). Policewomen were not alone in being subjected to sexual harassment in the workplace, as the criminal justice literature was replete with research on the existence of a sexualized environment in jails and prisons (Jurik, 1985 and Pollock, 1986). Zimmer (1986) studied female officers in two state correctional facilities and reported the occurrence of numerous acts that demeaned their feminine identity. Similarly, Stohr, Mays, Beck, and Kelley (1998) examined the prevalence and nature of sexual harassment in all women's jails and found that 22 percent of the respondents had been victims of sexual harassment (p. 147). Pogrebin and Poole (1997) studied the sexualized work environment of female deputy sheriffs in several county jails and adult detention centers and reported the existence of sexual harassment both on and off the job. In many cases, the sexual harassment was so blatant that female officers “expressed a concern that some of their male colleagues actually believed they were entitled to sexual favors” (p. 51). Some criminal justice agencies continue to experience sexualized work environments, even though women have a right to work in environments that are free from sex discrimination and sexual harassment (Harris v. Forklift Systems, Inc., 1993 and Meritor Savings Bank v. Vinson, 1986). This article focuses on the legal obligation of employers to ensure that sexual harassment does not occur, and how agency liability results when agencies fail to respond appropriately to incidents of sexual harassment. Where agency supervisors commit acts of sexual harassment, criminal justice employers may be found vicariously liable based on the doctrine of respondeat superior. Under this legal theory, the employer is strictly liable for damages caused by the employee's torts committed while acting in the scope of employment ( Vaughn, 1999 and Vicarious tort liability, 2003). In 1998, the United States Supreme Court adopted the doctrine of respondeat superior whereby employers might be held vicariously liable for unlawful sexual harassment by supervisors (Burlington Industries Inc. v. Ellerth, 1998 and Faragher v. City of Boca Raton, 1998). Since that time, lower courts sought to add meaning to this legal framework through a diversity of opinions. This article examines court decisions from criminal justice agencies pertaining to sexual harassment in light of Ellerth and Faragher, devoting particular attention to the emergence of legal patterns in the area of employer liability. 2 U. S. Supreme Court precedent on agency liability for sexual harassment Meritor Savings Bank v. Vinson (1986) was the first case in which the United States Supreme Court considered whether an employer could be held vicariously liable for sexual harassment. The issue before the Court was whether a supervisor's conduct, which created a hostile or abusive work environment, without economic loss to the complaining employee, violated Title VII of the Civil Rights Act (1964). In Meritor Savings Bank v. Vinson (1986), the U. S. Supreme Court held that “[w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, the supervisor discriminate[s] on the basis of sex” (p. 64). The Court also concluded that, “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment…[The victim's] allegations in this case—which include not only pervasive harassment but also criminal conduct of the most serious nature—are plainly sufficient to state a claim for ‘hostile environment’ sexual harassment” (p. 67). Also at issue in Meritor Savings Bank v. Vinson (1986) was whether “the mere existence of a grievance procedure and a policy against discrimination, coupled with [an employee's] failure to invoke that procedure must insulate [the employer] from liability” (p. 72). Rejecting the employer's argument, the Court held that while these facts are “relevant…they are not necessarily dispositive” (p. 72); rather, as evidenced here, the employer's “general non-discrimination policy did not address sexual harassment in particular, and thus did not alert employees to their employer's interest in correcting” the problem (pp. 72–73). Additionally, the Court observed that since the employer's “grievance procedure apparently required an employee to complain first to her supervisor… it is not altogether surprising that the respondent failed to invoke the procedure…” (p. 73). The significance of Meritor Savings Bank v. Vinson (1986) lies in the fact that the Supreme Court clearly established hostile environment sexual harassment as a viable cause of action and held that employers might be vicariously liable for the actions of supervising employees; however, the Court stopped short of “issu[ing] a definitive rule on employer liability,” stating only that “Congress wanted courts to look to agency principles for guidance in this area” (p. 72). In the aftermath of Meritor, the Court's admonition to lower courts to follow agency principles when assessing employer liability seemed to create as much confusion as it resolved. Over the ensuing years, lower courts adopted numerous approaches as they “struggled to derive manageable standards to govern employer liability for hostile environment harassment perpetrated by supervisory employees” ( Faragher v. City of Boca Raton, 1998, p. 785). The Supreme Court decided Burlington Industries Inc. v. Ellerth (1998) and aragher v. City of Boca Raton (1998), “to address the divergence” of opinions ( Faragher v. City of Boca Raton, 1998, p. 786) in the lower courts. Although factually dissimilar, both Burlington Industries Inc. v. Ellerth (1998) and Faragher v. City of Boca Raton (1998) dealt with an employer's liability for sexual harassment committed by a supervisor against a subordinate employee. At issue in Ellerth was whether “an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions” (1998, p. 747). Similarly, the issue in Faragher was the “identification of the circumstances under which an employer may be held liable under Title VII…for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile environment amounting to employment discrimination” (1998, p. 780). Building on the foundation of agency law that it had laid earlier in the Meritor Savings Bank v. Vinson (1986) decision, the Court held in both cases 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. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of evidence… ( Burlington Industries Inc. v. Ellerth, 1998, pp. 764–765; Faragher v. City of Boca Raton, 1998, p. 807). As established by the Court, the employer's affirmative defense consisted of “two necessary elements” (Burlington Industries Inc. v. Ellerth, 1998, p. 765; Faragher v. City of Boca Raton, 1998, p. 807). First, the employer must show “that [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior” (Burlington Industries Inc. v. Ellerth, 1998, p. 765; Faragher v. City of Boca Raton, 1998, p. 807). Secondly, the employer must show that “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise” (Burlington Industries Inc. v. Ellerth, 1998, p. 765; Faragher v. City of Boca Raton, 1998, p. 807). Although the employer was not required to provide proof that it promulgated an anti-harassment policy with a complaint procedure in every instance, the Court noted, “the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense” (Burlington Industries Inc. v. Ellerth, 1998, p. 765; Faragher v. City of Boca Raton, 1998, p. 807). Similarly, while proof that an employee failed to exercise “reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense” (Burlington Industries Inc. v. Ellerth, 1998, p. 765; Faragher v. City of Boca Raton, 1998, pp. 807–808). If an employer shows that it acted reasonably to prevent and correct promptly sexual harassment, and that the employee unreasonably failed to avoid harm, it can successfully avoid liability; however, if the employer fails to satisfy both requirements liability attaches ( Equal Employment Opportunity Commission (1999). In some cases where the employer is unable to avoid liability completely, the affirmative defense may be used to mitigate damages if the employee could have avoided some but not all of the harm that occurred ( Equal Employment Opportunity Commission, 1999). The standard of liability announced by the Court in Burlington Industries Inc. v. Ellerth (1998) and Faragher v. City of Boca Raton (1998) was predicated on the principle that “an employer is responsible for the acts of its supervisors,” and that “employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment” (Equal Employment Opportunity Commission, 1999). In the years since 1998, when the Court first articulated the employer liability standard, lower courts added meaning to this legal framework. The remainder of the article will discuss those cases where the employer has a duty to use care to prevent and correct sexual harassment and the employee has a duty to minimize damages and avoid harm.

Conclusion The law on sexual harassment is still evolving. Since the Supreme Court's decisions in Burlington Industries Inc. v. Ellerth (1998) and Faragher v. City of Boca Raton in 1998, the lower courts delineated the parameters for determining when employers might be vicariously liable for sexual harassment committed by supervisors and negligently liable for sexual harassment committed by co-workers. Within the context of these lower court decisions, several patterns emerged. First and foremost, the Ellerth/Faragher affirmative defense is not available when the supervisory harassment involves a tangible job benefit such as promotions, demotions, undesirable reassignments, and changes in employee benefits, compensation decisions, and work assignments. Second, and equally significant, the affirmative defense is not available to shield employers from liability where the department's response is ineffective and unreasonable. As a result, criminal justice employers must exercise reasonable care to prevent and correct sexual harassment in the workplace. Implicit in the employer's duty of care is the requirement to train all supervisors in how to report and handle sexual harassment complaints and how to prevent and stop the harassment. Although the Supreme Court in Burlington Industries Inc. v. Ellerth (1998) and Faragher v. City of Boca Raton (1998) stopped short of holding that an employer must have an anti-sexual harassment policy, criminal justice agencies are strongly urged to adopt one. Moreover, where sexual harassment policies exist, agencies are reminded that the mere existence of such policies is not sufficient to satisfy the duty to provide a workplace free of sexual harassment. In addition to developing, disseminating, and training employees on a comprehensive sexual harassment policy, criminal justice employers must ensure that the policy is effectively implemented and enforced. In this regard, reasonable responses by the employer include immediately investigating all sexual harassment complaints, transferring the harassing employee to a different unit or location, administering appropriate disciplinary action where warranted, and undertaking such other measures as may be necessary to stop the harassment. As it relates to policy development, criminal justice agencies must take care to create multiple reporting channels that are designed to encourage all employees to reveal supervisory and co-worker sexual harassment. Further, to avoid charges of retaliation, the victim cannot be made to report the harassment to the harasser and the harasser cannot be placed in charge of the investigation. To keep charges of reprisal to a minimum, the supervisor who is charged with the harassment must be kept out of the supervisory loop and the chain of command must be sufficiently flexible to allow victims to report abuse directly to those individuals charged with investigating the complaint. Last, but not least, the department must strive to overcome the code of silence and deal effectively with all employee misdeeds through the provision of appropriate education, training, and discipline. Looking ahead, more needs to be known about sexual harassment in criminal justice agencies. Although anecdotal reports identified the existence of sexual harassment in criminal justice agencies, the lack of systematic data collection hinders a comprehensive understanding of the problem. While supervisory sexual harassment gets most of the scholarly attention, the complex dynamics between co-worker harassment also remains an area of injury that deserves further exploration. From a legal perspective, more analysis needs to occur with respect to lawsuits brought in state courts and sexual harassment litigation in federal courts under Title 42, U.S. Code Section, 1983. All of these issues need further research to assist policymakers in developing strategies to limit this troubling aspect of the criminal justice workplace.