In the closing days of its 1997-1998 term, the United States Supreme Court issued three decisions, including one in a case from Maine, that have clarified and expanded the risks of employment discrimination litigation.  The Court’s decisions on sexual harassment and HIV infection, in particular, make it easier for employees to sue their employers and prevail.

HIV as a Disability
In a case under the Americans With Disabilities Act (ADA) public accommodations title, the Court held that an individual infected with HIV, the virus that causes AIDS, can invoke the protections of the ADA, even if he or she has no symptoms.

Of special interest for Maine employers, the case involved an HIV-positive woman who sued her Bangor dentist for disability bias after he informed her he had a policy of not filling cavities of HIV-infected patients in his office, but offered to perform the procedure in a hospital.  In Bragdon V. Abbott, the Court ruled by a 5-to-4 margin that HIV is a covered disability because it is a physical impairment that substantially limited the major life activity of reproduction.

Although the decision came outside the context of an employment situation, it is equally applicable to cases involving employment discrimination.  Moreover, the question of whether reproduction is a major life activity has been closely watched by the benefits community, which has seen different opinions on the legality of excluding health-claim coverage for individuals undergoing treatment for infertility.

Sexual Harassment
In Faragher v. Boca Raton, a female lifeguard sued the city claiming she and other female lifeguards had been subjected to “uninvited and offensive touching” as well as lewd and disparaging remarks from two male supervisors.  Faragher did not complain to higher management about her supervisors’ actions, but did speak informally with another supervisor, who failed to report the misconduct to his supervisor or any other city official.  Although the city had a sexual harassment policy, it was not distributed to all employees.

The employee in Burling Industries, Inc. v. Ellerth was a female salesperson who quit after fifteen months, allegedly because of her male supervisor’s constant sexual harassment.  The salesperson claimed the supervisor repeatedly made boorish and offensive comments and gestures and suggested that her work life would improve if she submitted to his sexual advances.  She suffered no tangible retaliation for rejecting those advances and was, in fact, promoted once.  Although she knew about her employer’s policy against sexual harassment, she never reported the supervisor’s conduct.

Standards of Liability
In Faragher and Burlington, the Court ruled that employers can be held responsible for sexual harassment committed by supervisors, even when no tangible employment action – such as discharge, demotion or undesirable reassignment – occurs.  However, when a supervisor’s act does not involve tangible employment action, an employer may defend itself by showing that: (1) it exercised reasonable care to prevent and promptly correct any sexual harassment; and (2) the complaining employee reasonably failed to take advantage of preventive or corrective opportunities.

This affirmative defense is not available when employment action is involved.  Thus, in some circumstances, an employer can be held liable for sexual harassment by one of its supervisors, even if it had no knowledge of the misconduct.