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In order to accommodate these principles, the Court held that an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action.
However, if it does not, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements: decisions addressed sexual harassment, the Court’s analysis drew upon standards set forth in cases involving harassment on other protected bases.
Moreover, the Commission has always taken the position that the same basic standards apply to all types of prohibited harassment.
Thus, the standard of liability set forth in the decisions applies to all forms of unlawful harassment.While the anti-discrimination statutes seek to remedy discrimination, their primary purpose is to prevent violations.The Supreme Court, in The new affirmative defense gives credit for such preventive efforts by an employer, thereby “implement[ing] clear statutory policy and complement[ing] the Government’s Title VII enforcement efforts.” The question of liability arises only after there is a determination that unlawful harassment occurred.For example, the number of sexual harassment charges has increased from 6,883 in fiscal year 1991 to 15,618 in fiscal year 1998.The number of racial harassment charges rose from 4,910 to 9,908 charges in the same time period.(See section II, below.) Harassment remains a pervasive problem in American workplaces.