Proposed Change to Sexual Harassment Law Would Impose Strict Liability on Employers

House Bill 7044, recently reported favorably out of the General Assembly’s Labor and Public Employees Committee, has not yet become law. [see our blog article from March 19, 2019: Latest Developments from the Connecticut General Assembly: The Labor and Public Employees Committee Begins to Speak] In fact, earlier versions of the bill introduced in past years have failed to be enacted.  You may think that Connecticut employers have enough to concern them without worrying about a law that does not yet exist.  But this bill, entitled An Act Concerning Sexual Harassment in the Workplace, would make such a fundamental change in the law concerning sexual harassment that it serves to illustrate the strong focus on  employee rights in our current legislature.

Sexual harassment has long been recognized as a form of sex discrimination that violates both Title VII and the Connecticut Fair Employment Practices Act (“CFEPA”).  The employer will ordinarily be liable for sexual harassment when the harasser is a member of management, because managers act with authority from the corporation.  Liability when the harasser is the victim’s co-worker, and the harassment is unknown to management, is a more difficult question.

In a pair of landmark decisions in 1998, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the U. S. Supreme Court adopted a common-sense approach. Since harassment occurs in the workplace, the employer can be liable, but the employer also has the benefit of an affirmative defense, meaning a defense against liability even if the alleged harassment actually occurred.

The affirmative defense has two parts: first, the employer must have exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and second, the employee must have unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer.  In other words, if the employer had a sexual harassment policy that was diligently enforced, the employer would not be liable if the victim did not report the harassment and the harassment could not otherwise have been discovered.  (The employer would have the burden of proof  of the elements of the affirmative defense.)

HB 7044 entirely eliminates this affirmative defense in sexual harassment actions under CFEPA. The bill states that it shall not be a defense to a complaint of sexual harassment even if  the employer has an anti-harassment policy or recently provided anti-harassment training, even if the victim never reported the conduct but simply filed a complaint with the Commission on Human Rights and Opportunities, and even if once the employer learned of the conduct, there was an investigation and corrective action, and no subsequent harassment occurred.

This approach is known in other contexts as “strict liability.” It is analogous to workers compensation, where the employer’s liability for a workplace injury is automatic no matter how safety conscious the employer is, nor how careless or neglectful of safety the employee may have been.  But unlike workers compensation, which has specific liability limits, there are essentially no restrictions on the damages that could be recovered by a victim of sexual harassment.  Although HB 7044 allows conscientious efforts by an employer to prevent harassment to be introduced in an effort to mitigate damages, limitation of damages is not assured.

Indeed,  HB 7044 actually increases potential  liability by providing for payment of costs and attorneys’ fees incurred by a successful complainant.  (The Connecticut Supreme Court had ruled that reimbursement of attorneys’ fees is not available as damages under CFEPA, in  a 1995 case litigated by this author.)

This bill, if it becomes law, will certainly motivate employers to re-double their efforts at prevention of sexual harassment and anti-harassment training. It may also make sexual harassment liability insurance nearly as common as workers compensation insurance (thought probably more expensive), since there will be no defense to employer liability for sexual harassment by  a co-worker.