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It does not avail the employer that it properly selected and supervised the offender and that the abusive acts were not committed in the scope and course of employment.Under the employer can prevail where a hostile environment based on sexual harassment is shown to exist only if it fulfills the conditions of an affirmative defense set out by the Supreme Court. Thus the Court expanded the liability of an employer for a supervisors hostile environment sexual harassment, but it fell short of imposing per se liability by allowing the affirmative defense.Where the supervisor was acting in the scope or course of his or her employment.
The defenses of notice to the employer, the exercise of due care and that the acts were not committed in the scope and course of employment or with the aid of apparent authority are apparently still viable where the offender is not one with supervisory authority over the plaintiff.
Second, it must be remembered that ruled only on the issue of when an employer is liable for a supervisors act.
An employer may also be found liable on a negligence theory. 1999) the court held that an employer "..be liable if it had constructive knowledge, i.e., if through the exercise of reasonable care it should have known what was going on but failed to address it." In that case two supervisors openly harassed the plaintiff, an officer in a police force mounted patrol unit, in front of her fellow officers. Thus the court reasoned that the jury could have determined that the police department did not exercise sufficient control over the mounted patrol to prevent the harassment from occurring.
The court also focused on evidence of a code of silence among the police that would intimidate one from making a complaint through the appropriate channels.
an employer could no longer rely on the absence of these circumstances to defend a hostile environment sexual harassment claim based on the actions of a supervisor or manager.