INTRODUCTION
In the summer of 1998, the United
States Supreme Court decided three cases
involving sexual harassment liability under
Title VII of the Civil Rights Act of 1964.
These cases, Faragher v. City of Boca Raton,[1]
Burlington Industries, Inc. v. Ellerth,[2]
and Oncale v. Sundowner Offshore Services,
Inc.,[3]
resolved several issues on which the lower
courts had disagreed following the only two
prior Supreme Court decisions on sexual
harassment, Meritor Savings Bank v.
Vinson,[4]
and Harris v. Forklift Systems, Inc.[5]
The 1998 cases were generally hailed
as favoring employees and making it easier for
them to recover for sexual harassment, but they
also benefit employers in some respects.
As often happens when the Supreme
Court rules, these cases raised as many legal
questions as they answered, and increased the
significance of certain factual issues. Since
the Court decided these three cases, many of the
reported sexual harassment opinions reflect a
shift in focus to these legal and factual
issues. In addition to numerous recent lower
court decisions involving these issues, the
Equal Employment Opportunity Commission (EEOC)
recently issued a detailed set of guidelines
addressing them.
Finally, another Supreme Court case
under Title VII, Kolstad v. American Dental
Association,[6]
although not a sexual harassment case, affects
the availability of punitive damages in such
cases and therefore has significant implications
for them.
This article briefly summarizes
these Supreme Court decisions and discusses
their practical and legal significance, with
citations to some of the recent case law and the
EEOC guidelines. It concludes with some
practical suggestions for employers seeking to
eradicate sexual harassment and avoid exposure
to liability for such harassment.
Note from the Author: As of the time
this article was added to the website in 2005, a
few points have become dated, notably that since
the article was written the Supreme Court has
addressed constructive discharge in the sexual
harassment context. Nonetheless, it
contains much valuable material and remains a
good introduction to the subject.
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THE 1998 SUPREME COURT SEXUAL HARASSMENT
CASES
Oncale
In Oncale, the Supreme Court
addressed same-sex harassment for the first
time. Prior to Oncale, the courts had
been struggling with sexual harassment cases in
which the perpetrator and victim were both the
same gender.[7]
The courts' difficulty with this same-sex
harassment issue was
largely due to a failure to properly apply the
statutory language and the reasoning of the
original sexual harassment cases.
The
statutory basis for sexual harassment claims is
Title VII’s prohibition of discrimination
"against any individual . . .
because of such individual’s . . . sex . . ."[8]
Therefore, the "sex" in "sexual harassment"
refers to the victim’s gender, not the sexual
nature of the harassment. In the earliest cases
holding that sexual harassment violates Title
VII, in which the perpetrators and victims were
of opposite genders, the courts reasoned that
such conduct was sex discrimination because the
perpetrators were motivated by the gender of the
victims.[9]
This is typically true of opposite-sex
harassment of a sexual nature because, for
example, normally a male harasser who makes a
sexual advance on a female employee does so
because she is a woman, and would not engage in
such conduct with a male employee. For this
reason, the sexual harassment case law developed
in the opposite-sex context had long been
ignoring this statutory language, in effect
substituting "sexual" for "because of sex"
(gender).
The plaintiff in Oncale was a
man who alleged he had been forcibly subjected
to sex-related, humiliating actions, sexual
assault, and threats of rape by three male
members of his offshore oil crew. The district
court ruled against him, holding that “a male
employee has no cause of action under Title VII
for harassment by male co-workers,”[10]
and the Fifth Circuit affirmed.[11]
The Supreme Court reversed, holding
that same-sex sexual harassment is actionable
under Title VII, and explaining that the
"harassing conduct does not need to be motivated
by sexual desire."
Rather, the harassment must
meet the standard of discrimination because of
gender – exposure of members of one gender to
disadvantageous terms or conditions of
employment to which members of the other gender
are not exposed.[12]
Oncale thus brought the analytical focus
back to the statutory language. Under this
standard, a harasser need not be a homosexual
for a victim of same-sex harassment to have a
cause of action,[13]
although proof of such a sexual preference will
generally establish that the conduct was because
of gender.[14]
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Faragher
The other two 1998 Supreme Court
decisions, Faragher and Ellerth,
are companion cases dealing with two different
aspects of the same issue -- when an employer is
liable for harassment committed by a
supervisor. The Court had touched on this issue
in 1986 in Meritor,[15]
but had not provided adequate guidance, with the
result that the lower courts were applying
widely varying standards.[16]
The Plaintiff in Faragher was
a former city lifeguard who alleged that her
superiors repeatedly subjected her and other
female lifeguards to uninvited and offensive
touching and lewd remarks, and spoke of women in
offensive terms.
The facts alleged clearly met
the Court’s definition of hostile environment
sexual harassment, summarized in Harris
as requiring that the workplace be permeated
with severe or pervasive discriminatory
intimidation, ridicule, and insult, creating an
objectively and subjectively hostile and abusive
working environment.
The city had a sexual harassment
policy and circulated it to some employees, but
failed to adequately circulate it in the
plaintiff’s workplace. For this reason, many of
the lifeguards, including the offending
supervisors, were unaware of the policy.
The
plaintiff did not complain to higher management
about the harassment. Although she and other
lifeguards mentioned it to a non-offending
supervisor, he did not regard their comments as
formal complaints, and did not report them to
anyone.
Two months before the plaintiff’s
resignation, another former lifeguard wrote to
the city’s personnel director complaining about
such harassment. The city then investigated,
concluded the supervisors had behaved
improperly, and disciplined them.
After finding the conduct met the
standard for hostile work environment sexual
harassment, the district court held the city
liable for the supervisors’ conduct.[17]
It stated three theories of liability: (1) The
harassment was pervasive enough to support an
inference that the city knew or should have
known of it before the complaint finally reached
the personnel director, but did not take
appropriate remedial action; (2) the supervisors
were acting as the city’s agents when they
committed the harassing acts; and (3) the
non-offending supervisor had actual knowledge of
the harassment, but did not take appropriate
remedial action. The Eleventh Circuit reversed,
rejecting each of these theories.[18]
The Supreme Court reversed,
reinstating the judgment for the plaintiff. It
conducted a thorough and extensive analysis of
agency law, discussing the possibility of basing
liability on the theory that the supervisors
were acting within the scope of their employment
when they engaged in the harassment or on the
theory that the supervisors’ agency relationship
with the employer aided them in committing the
harassment.
The Court rejected the
scope-of-employment theory and concluded that
"the aided-by-agency-relation principle . . .
provides an appropriate starting point."[19]
Because "there is a sense in which a harassing
supervisor is always assisted in his misconduct
by the supervisory relationship,"[20]
however, unrestricted application of this
principle could result in employers always being
vicariously liable for supervisory harassment.
Such an absolute rule of liability would
conflict directly with the Court’s rejection in
Meritor of the proposition that employers
are "always automatically liable for sexual
harassment by their supervisors."[21]
To avoid this conflict with
Meritor, to give employers an incentive to
prevent violations, and to give employees
an incentive to avoid or mitigate harm, the
Court held in Faragher that although an
employer is vicariously liable for harassment by
a supervisor with authority over the harassed
employee, regardless of whether the employer
knew or should have known of the harassment,
when no tangible employment action is taken the
employer may avoid such liability by proving an
affirmative defense consisting of two elements:
(1) the employer exercised reasonable care to
prevent and promptly correct any sexually
harassing behavior; and (2) the employee
unreasonably failed to take advantage of any
preventive or corrective opportunities provided
by the employer, or to avoid harm otherwise.
On the first element of this
defense, the Court explained that while a sexual
harassment policy and complaint procedure is not
necessary in every instance as a matter of law,
the need for such a policy may be
addressed as part of the employer’s fulfillment
of its duty to prevent and correct harassment.
On the second element, the Court explained that
proof that an employee unreasonably failed to
use the employer’s complaint procedure will
normally satisfy the employer’s burden, although
there may also be other ways of meeting this
burden.
Applying this new rule in
Faragher, the Court held the City could not
prevail on the affirmative defense because it
had not exercised reasonable care to
prevent harassment in three respects: (1) it had
failed to adequately disseminate its sexual
harassment policy in the plaintiff’s workplace;
(2) it had made no attempt to
monitor the conduct of its supervisors; and (3)
its sexual harassment policy provided no means
of bypassing the harassing supervisors in
registering complaints.
The Court stated that
unlike a small employer, who might expect that
sufficient preventive care could be exercised
informally, the city could not reasonably have
thought it could adequately do so without
properly communicating a formal harassment
policy with a sensible complaint procedure.
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Ellerth
In Ellerth, the issue
was whether an employer is automatically liable
if a supervisor makes sexual advances to an
employee accompanied by threats of
adverse job consequences, but the threats
are not carried out despite the employee’s
refusal to submit to the advances.
This issue
was particularly significant because the lower
courts had routinely been distinguishing between
"hostile environment" and "quid pro quo" sexual
harassment. Quid pro quo harassment was defined
as threats of negative job consequences in
retaliation for refusal to submit to sexual
advances or other harassment, or promises of
favorable treatment upon submission to such
conduct.
Many courts had held that employers
were automatically liable for "quid pro quo"
harassment, but were liable for "hostile
environment" sexual harassment only if they knew
or should have known of the harassment and
failed to take appropriate remedial action.
In Ellerth, the plaintiff
alleged she had been subjected to constant
sexual harassment by a mid-level manager.
Although she knew the employer had a
sexual harassment policy, the plaintiff in
Ellerth did not inform anyone in authority
about the harassment.
The district court
granted summary judgment to the employer,
holding that the alleged harassment created a
hostile work environment, but the employer was
not liable because it neither knew nor should
have known about it.[22]
On appeal, although she also had
hostile environment evidence, the plaintiff
attempted to take advantage of the principle of
absolute liability for quid pro quo harassment
by emphasizing three comments by the manager
that could be construed as threats to deny her
tangible job benefits.[23]
However, he admittedly had never taken the
threatened action.
Hearing the appeal en banc,
the Seventh Circuit reversed and remanded, in a
fragmented decision revealing very diverse views
on the basis for liability.[24]
The judges agreed the plaintiff’s claim could be
categorized as one of "quid pro quo" harassment,
even though she had suffered no tangible
retaliation for her refusal of the manager’s
advances, but disagreed on the standard for
determining whether the employer should be
liable.[25]
The Supreme Court affirmed the result of the
Seventh Circuit’s decision, but did not fully
adopt the reasoning of any of the judges. It
reiterated the Faragher affirmative
defense and indicated that on remand the
district court should determine whether the
employer can establish this defense.
The significance of Ellerth
lies in the Court’s rejection, contrary to many
lower court decisions, of the proposition that
the distinction between "hostile environment"
and "quid pro quo" sexual harassment is always
determinative of when an employer is liable for
harassment by a supervisor.
The Court held this
distinction plays a significant role in the
employer’s liability only when a tangible
employment action -- such as termination of
employment or denial of a promotion -- results
from an employee’s refusal to submit to a
supervisor’s sexual demands, i.e. when a
"quid pro quo" threat is actually carried out.
In such a situation, the
"quid pro quo" nature
of the harassment has two consequences.
First,
the employment action resulting from the threat
is itself a change in the terms and conditions
of employment actionable under Title VII.
Otherwise, for harassment to be actionable, the
conduct must be sufficiently severe or pervasive
to create a hostile environment before it can be
viewed as such a change. Because the
plaintiff’s claim in Ellerth involved
only unfulfilled threats, and no tangible
employment action, it therefore had to meet the
hostile environment standard.
The second
consequence of "quid pro quo" harassment
resulting in a tangible employment action is
that the employer is automatically liable, and
has no recourse to the Faragher/Ellerth
affirmative defense.
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FAVORABLE ASPECTS OF ONCALE,
ELLERTH, AND FARAGHER FOR BOTH
EMPLOYERS AND EMPLOYEES
The three Supreme Court sexual
harassment cases discussed above were largely
reported in the mass media as making it much
easier for employees alleging harassment to
prevail in court.[26]
Closer examination of the Court’s opinions,
however, reveals that certain aspects of these
cases are more favorable to employers than
employees. Moreover, in some respects these
cases do not represent significant changes in
the law.
Oncale
Oncale benefitted employees
by eliminating any doubt that same-sex sexual
harassment is actionable, but this was not an
unprecedented holding, as many lower courts had
already allowed such claims.
On the other hand,
Oncale is potentially quite favorable to
employers in emphasizing the "because of sex"
gender discrimination requirement, particularly
if this emphasis carries over to opposite-sex
harassment cases.
While it is commonly believed
that exposure to any workplace
comments or joking about sexual matters may
allow an employee to recover for sexual
harassment, the Court refuted this perception
in Oncale, stating that "workplace
harassment, even harassment between men and
women, is [not] automatically discrimination
because of sex merely because the words used
have sexual content or connotations."[27]
In some situations, such as a work environment
in which men and women participate equally in
conduct such as exchanging dirty jokes or
discussing sexual matters, or find such conduct
equally offensive, for example, this statement
may support a defense that although the conduct
is sexual in nature, it is not discrimination
"because of sex" and thus not unlawful.
The Court made several other
statements in Oncale that discourage an
overly broad view of what constitutes actionable
sexual harassment. It reemphasized its
standard previously set forth in Meritor
and Harris that hostile environment
sexual harassment must involve conduct so severe
or pervasive and objectively offensive that it
alters the conditions of the victim’s
employment, creating an objectively hostile or
abusive work environment -- requirements which
it said in Oncale are crucial in order
"to ensure that courts and juries do not mistake
ordinary socializing in the workplace -- such as
male-on-male horseplay or intersexual flirtation
-- for discriminatory 'conditions of
employment.'"[28]
The Court also stated that
"the
objective severity of harassment should be
judged from the perspective of a reasonable
person in the plaintiff’s position, considering
all the circumstances. . ., [which] requires
careful consideration of the social context in
which particular behavior occurs and is
experienced . . . ," including "a constellation
of surrounding circumstances, expectations, and
relationships which are not fully captured by a
simple recitation of the words used or the
physical acts performed."[29]
It further emphasized that "[c]ommon sense, and
an appropriate sensitivity to social context,
will enable courts and juries to distinguish
between simple teasing or roughhousing among
members of the same sex, and conduct which a
reasonable person in the plaintiff’s position
would find severely hostile or abusive."[30]
In the opposite-sex context, these
statements from Oncale may be helpful to
employers seeking, for example, to use evidence
of a sexual harassment plaintiff’s relationship
with her alleged harasser, or her own workplace
conduct with other employees, to establish the
"social context" of her allegations, or to
minimize the significance of the alleged conduct
by characterizing it as mere "intersexual
flirtation" or "simple teasing."
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Faragher
Similarly, the Faragher
opinion emphasizes the degree of severity
required, stating that Title VII is not to be a
"general civility code" and that "simple teasing
. . . , offhand comments, and isolated incidents
(unless extremely serious)" will not suffice.
Thus, employees may not recover damages for "the
ordinary tribulations of the workplace, such as
the sporadic use of abusive language,
gender-related jokes, and occasional teasing."[31]
Many sexual harassment cases being filed today
are based to some degree on such isolated
incidents, comments, language, jokes and/or
teasing, and these statements from Faragher
may be quite useful to employers defending
such cases.
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Ellerth
Ellerth’s rule of automatic
employer liability for "quid pro quo" sexual
harassment by supervisors also was not an
unqualified victory for employees. This was
basically the rule most courts were already
applying. If anything, Ellerth
benefitted employers by limiting its scope to
cases in which there is "a tangible employment
action."
The Faragher rule of
automatic employer liability, subject to the new
affirmative defense, for "hostile environment"
supervisory harassment not involving "a tangible
employment action" is more favorable to
employees then the rules previously applied in
some circuits, which had required proof that the
employer knew or should have known of the
harassment, but failed to remedy it.
It is not
an unqualified victory for employees, however,
as the new Faragher/Ellerth affirmative
defense benefits employers by allowing them to
reduce exposure to sexual harassment liability
by laying the groundwork for the defense before
litigation occurs.
Employers can do this by
establishing and communicating an effective
harassment policy, training and monitoring
supervisors and employees, and properly
investigating and remedying harassment
complaints.
The new affirmative defense also
may assist employers in some cases by shifting
the focus from the distasteful or salacious
nature of the alleged harassment to the response
of the employer and employee to it, factors
which may often be more favorable to the
employer, cast a less favorable light on the
employee, and be less inflammatory to a jury.
Finally, statements in Faragher and
Ellerth to the effect that sexual harassment
is normally not within the scope of a
supervisor’s employment may be useful to
employers in defending tort claims which are
frequently brought in conjunction with Title VII
claims in sexual harassment cases.[32]
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LEGAL AND FACTUAL ISSUES HIGHLIGHTED BY
ONCALE, FARAGHER,
AND ELLERTH
"Tangible Employment Action"
An important legal issue arising out
of these cases is the definition of "tangible
employment action," which determines whether the
Faragher/Ellerth affirmative defense is
available in cases of supervisory harassment.[33]
Some circumstances, such as employment
termination or pay or benefit reduction,
obviously meet this definition; others, such as
changes in working conditions or job duties,[34]
or constructive discharge,[35]
present more difficult issues.
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Liability for Harassment by Non-supervisory
Workers
Another very important legal issue
is the standard of liability for alleged
harassment by non-supervisory workers,
particularly whether the Faragher/Ellerth
affirmative defense is available.
Previously,
liability for such harassment was generally
based on a negligence standard -- whether the
employer knew or should have known of it, but
failed to take appropriate remedial action.[36]
So far, most courts appear to be narrowly
construing Faragher and Ellerth as
having no effect on such liability.[37]
At first glance, this negligence standard
appears to make it easier for employees to
prevail in supervisory harassment cases than in
co-worker harassment cases, as it is now clear
that the supervisory cases require no proof of
employer knowledge.
An easier standard of proof
for supervisory harassment is consistent with
the Court’s observation in Faragher that
automatic liability is appropriate in such cases
because employers have a greater opportunity and
incentive to screen, train and monitor
supervisors, and to guard against misconduct by
them.
However, if the affirmative defense is
not made available to employers in co-worker
harassment cases, this would have the anomalous
result that sometimes it would be harder for
employees to prevail in supervisory harassment
cases than in co-worker harassment cases -- if
they failed to use the employer’s complaint
procedure or to otherwise act reasonably to
prevent harm, they could nevertheless prevail in
co-worker cases, but not in supervisor cases.[38]
If in spite of this reasoning, the courts
continue to limit the affirmative defense to
harassment by supervisors, then a very important
legal issue will be whether a particular
individual is a supervisor or a co-worker, as
this will determine whether the employer may
utilize the affirmative defense.
In particular,
there will be disputes over employees with
relatively little supervisory authority, such as
"foremen" or "leadmen."
Another issue related
to the differing treatment of co-worker and
supervisory harassment is whether employer
negligence will be allowed as an alternative
basis for establishing liability in supervisory
harassment cases, and if so, whether the
affirmative defense will be available in such
cases.[39]
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Employer
Efforts Required
Another very important legal issue
in applying Faragher and Ellerth
is whether an employer can establish the first
prong of the affirmative defense -- reasonable
efforts to prevent and correct sexual harassment
-- simply by proving that an appropriate policy
and complaint procedure was in place and was
properly communicated to all employees, or
whether the employer may be required to show it
took further steps, such as training supervisors
and employees, monitoring supervisors, or
investigating other employees’ complaints.
As
the Faragher case itself indicates, there
will also be factual and legal issues as to the
adequacy of an employer’s policy and its
distribution, and some cases and the EEOC
Guidelines indicate the actual effectiveness of
the complaint and investigative procedures --
not just how it looks on paper -- is also
relevant to the employer’s prong of the
affirmative defense.[40]
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Employee Efforts Required
On the second prong -- the
employee’s duty to exercise reasonable care --
issues will include: the adequacy of the
employee’s complaint, i.e., if it was
informal, vague, and/or incomplete;[41]
the circumstances under which the employee’s
failure to report harassment is excused, such as
fear of retaliation or expectation of futility;[42]
what an employee may do -- or may be required to
do -- other than complaining under the
employer’s policy, to show reasonable efforts
"to avoid harm otherwise"[43];
and whether the affirmative defense is available
where the employee complains, but does not do so
in a timely manner.[44]
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If
Both Parties Act Reasonably
Further litigation is also
anticipated over whether an employer is
automatically liable, and cannot establish the
affirmative defense, if both the employer and
the employee have acted reasonably.
For
example, this could occur if the employer has a
good policy and training procedures in place,
the employee promptly utilizes the policy to
complain about harassment, and the employer
promptly investigates and takes appropriate
action.
The affirmative defense, as stated in
Faragher and Ellerth, literally
applies only if the employer can establish both
of its prongs, so unless the employee fails to
act reasonably, the employer is liable in such a
situation regardless of how reasonably it has
acted.
Notwithstanding this literal reading of
the cases, employers can be expected to claim
that holding them liable in such a situation is
contrary to the reasoning underlying the
affirmative defense -- that employers should
have an incentive to prevent and correct
violations.[45]
On the other hand, particularly if the alleged
harassment is very serious, such as a sexual
assault or rape, employees will contend they are
entitled to compensation for it despite the
employer’s efforts because the employer’s
remedial action cannot undo the damage caused
before such action.
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Summary Judgment
Since the affirmative defense is
stated in terms of the reasonableness of the
conduct of both the employer and the employee,
and the reasonableness of conduct in other areas
of the law is often considered to be a fact
question for jury determination, some courts may
be reluctant to grant summary judgment based on
this defense.[46]
However, in many cases the facts relevant to the
affirmative defense will not be disputed, and
many judges may be inclined to view the
reasonableness of the conduct involved in such
situations as a question of law suitable for
decision on summary judgment.[47]
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Constructive
Discharge
Another issue which will continue to
be important, although not directly addressed in
the recent Supreme Court cases, is whether an
employee who quit because of sexual harassment
can establish a constructive discharge.[48]
A number of recent Eighth Circuit decisions have
made it quite difficult for an employee to do
so, particularly if they quit without giving the
employer an adequate opportunity to investigate
and remedy the harassment.[49]
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KOLSTAD AND THE AVAILABILITY
OF PUNITIVE DAMAGES
In Kolstad v. American Dental
Association,[50]
the Supreme Court rejected the proposition that
punitive damages may be awarded under Title VII
only under particularly "egregious"
circumstances.
Although it was not a sexual
harassment case, Kolstad also announced a
principle that may be directly applicable to
such cases -- that punitive damages may not be
awarded against an employer held vicariously
liable for discriminatory conduct by its
managerial agents which is contrary to the
employer’s "good faith efforts to comply with
Title VII."
Thus, in the sexual harassment
context, if the employer can demonstrate a
strong, vigorously enforced policy against
sexual harassment, it may be able to avoid
punitive damages for harassment committed by its
supervisors based on Kolstad, even if it
is unable to avoid all liability based on the
affirmative defense. This further emphasizes
the importance of a sexual harassment policy and
training.
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SUGGESTIONS FOR EMPLOYERS
In light of Faragher, Ellerth,
and Kolstad, a strong preventive approach
to sexual harassment is more important than
ever.
Employers should develop and disseminate
a comprehensive harassment policy, train all
employees, monitor supervisors and the workplace
environment, promptly and thoroughly investigate
all harassment allegations, take appropriate
remedial and disciplinary action, and carefully
review tangible employment actions.[51]
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The Harassment Policy
A written sexual harassment policy
should typically begin with a general statement
of the employer’s intention to comply with all
applicable federal, state, and local equal
employment opportunity laws, and a prohibition
of sexual and other forms of harassment and
discrimination.
The EEOC Guidelines provide that such policies
should also contain a clear explanation of
prohibited conduct,[53]
assurances against retaliation,[54]
a clear and accessible complaint procedure,[55]
assurances that complaints will be kept
confidential to the extent possible, and
assurances that complaints will be promptly,
thoroughly, and impartially investigated and
appropriate corrective action taken immediately
if it is determined that harassment occurred.
The policy should warn of the potential
disciplinary consequences for violations, up to
and including discharge.[56]
Some other issues relating to sexual harassment
prevention which should be addressed by
employers, although they may be handled more
appropriately through separate company policies,
include manager-subordinate romances,[57]
conduct at company-sponsored entertainment
events and business trips,[58]
dress code,[59]
and use of computers and electronic
communications.[60]
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Training and
Monitoring
After creating an appropriate
harassment policy, employers must properly
distribute it,[61]
and carefully and thoroughly train employees and
supervisors. In addition to explanation of the
policy itself, such training should include
clear guidance as to the specific types of
conduct which are prohibited.[62]
Attendance at training sessions should be
documented.
Training of managers and
supervisors should emphasize that their job
duties include serving as a role model for
appropriate behavior, actively watching for and
reporting violations of the policy, even absent
employee complaints,[63]
and taking appropriate action on employee
complaints.[64]
Such training should also address the critical
importance of avoiding retaliation against
complaining employees, even if the complaints
are not substantiated.
The Court’s comment in Faragher
that the employer did not monitor its
supervisors suggests that an employer invoking
the affirmative defense may have to show it did
so, making it desirable for employers to take
steps to determine whether supervisors are
engaging in harassment, such as by actively
seeking such information from employees.[65]
The EEOC Guidelines suggest including compliance
with the harassment policy in supervisors’
formal evaluations, and state that reasonable
preventive measures include screening
supervisory applicants for a record of
harassment.
The holding in Ellerth that
an employer has no defense if harassment by
supervisor involves "a tangible employment
action" makes it extremely important that no
supervisor have unrestricted authority to take
such action unilaterally.
Rather, all such
actions should be subjected to careful,
objective review by others to ensure they are
based on legitimate, nondiscriminatory reasons.
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Investigation and Corrective Action
When a harassment complaint
is received, it must be promptly investigated.[66]
It may be necessary to take interim action
immediately, pending investigation.[67]
Avoiding retaliation is very important,
particularly if the alleged harasser has
authority over the complainant, so the alleged
harasser and other appropriate persons should be
cautioned strongly against retaliation.
The EEOC Guidelines contain valuable suggestions for
conducting investigations, including questions
to ask witnesses and factors relevant to
credibility determinations. They also provide
that the investigator should be well trained in
the skills required for interviewing witnesses
and evaluating credibility.
However, use of the
company’s regular attorney as an investigator
may be problematic because it can result in
disqualification of the attorney from
representing the employer in litigation and
waiver of attorney-client privilege.[68]
How the complainant is treated in
the investigation can be more important than
anything else in determining whether a complaint
results in a lawsuit. People who are treated
fairly and compassionately and feel that the
employer cares about their complaint are much
less likely to sue.
Confidentiality of the
investigation should be maintained to the
maximum extent possible.
Investigators should
not settle for a general denial by the alleged
harasser, but should press for further details.
Upon completion of the
investigation, the employer must make a
determination as to whether the alleged conduct
occurred, inform the parties of such
determination, and take appropriate corrective
action if warranted.
If the employer can’t
reach a definitive conclusion, it should at a
minimum recommunicate and reaffirm its sexual
harassment policy to all of the parties
involved.
Employees complaining about harassment
are not automatically entitled to the remedy
they suggest.
Appropriate corrective action can
run the gamut -- from reminders of the
harassment policy and complaint procedures,
through separation of the parties involved,
re-training of employees and supervisors, formal
discipline, suspension, demotion, and transfers
to other locations -- to the ultimate sanction
of termination of employment.
Factors to
consider in evaluating the seriousness of
harassment for purposes of determining the
appropriate remedy include the nature of the
conduct (physical, verbal, or both), its
frequency, severity and pervasiveness,[69]
the identity of the harasser (supervisor,
co-worker, or third party), the context in which
the conduct occurred, and the effect of the
conduct on the complainant.
It is important
that any discipline be consistent with treatment
of other employees under similar circumstances.
Whatever remedy is selected, it is important for
the employer to follow up to make sure it has
been effective and no retaliation has occurred.
[return
to top]
CONCLUSION
The 1998 Supreme Court sexual
harassment decisions make it easier for
employees to prevail on harassment claims
against employers that fail to take this issue
seriously.
On the other hand, they also contain
statements cautioning against an overly broad
view of sexual harassment that may be useful to
employers defending such claims and, together
with the EEOC Guidelines, provide employers that
do take the issue seriously with valuable
guidance on how to reduce exposure to such
claims.
All employers should review and improve
their existing policies and practices to ensure
they are taking all steps necessary to prevent
and correct sexual harassment and to enable them
to successfully assert the new affirmative
defense if claims arise.
[return
to top]
FOOTNOTES
[1].
524 U.S. 775, 118 S.Ct. 2275
(1998).
[2].
524 U.S. 742, 118 S.Ct. 2257
(1998).
[3].
523 U.S. 75, 118 S.Ct. 998
(1998).
[4].
477 U.S. 57, 106 S.Ct. 2399
(1986). In Meritor,
the Court’s first sexual harassment
decision, the Court agreed with EEOC
regulations defining sexual harassment as
violative of Title VII even if it does not
have any economic effect on the harassed
employee but only involves a “hostile work
environment.”
[5].
510 U.S. 17, 114 S.Ct. 367
(1993). In Harris,
the Court’s second sexual harassment
decision, the Court rejected the contention
that an employee complaining of sexual
harassment could recover under Title VII
only if the harassment had a serious effect
upon the employee’s psychological well-being
or caused the employee to suffer injury,
holding instead that it was sufficient if it
was “sufficiently severe or pervasive to
alter the conditions of the victim’s
employment and create an abusive working
environment.”
[6].
___ U.S. ___, 119 S.Ct. 2118
(1999).
[7]. From the conflicting
decisions in various Circuits, the Supreme
Court in Oncale identified three very
different approaches to this issue: (1)
same-sex sexual harassment claims are not
cognizable under Title VII; (2) such claims
are actionable only if the plaintiff can
prove the harasser is homosexual (and thus
presumably motivated by sexual desire); and
(3) workplace harassment that is sexual in
content is always actionable, regardless of
the harasser’s sex, sexual orientation, or
motivations.
523 U.S. at 79, 118 S.Ct. 998
at 1001 (citing decisions of
the 5th, 7th, and 9th
Circuits).
[9]. See, e.g.,
Barnes v. Costle, 561 F.2d 983, 989-908 (D.C.Cir.
1977) (termination of female
employee for refusal to submit to
supervisor’s advances violated Title VII
because it was based on her gender, not
merely on her refusal to engage in a sexual
affair; “she became the target of her
superior’s sexual desires because she was a
woman”; it was sex discrimination not
because it involved a demand for sex, but
because it involved a condition of
employment the supervisor would not have
imposed on a male employee).
[10]. 67 Fair Empl. Prac. Cas.
(BNA) 769;
1995 WL 133349 (E.D. La. 1995).
[11].
83 F.3d 118 (5th
Cir. 1996).
[12]. 118 S.Ct. At 1002. Note
that this holding does not correspond
exactly to any of the three Court of Appeals
interpretations identified by the Supreme
Court as set forth above.
[13].
See, e.g.,
Schmedding v. Tnmec Company, Inc., 187 F.3d 862
(8th Cir. 1999)
(allegations of harassment of male employee
by heterosexual male employees in effort to
debase his masculinity stated cognizable
claim under Title VII).
[14]. Because, for example, a
homosexual male who makes sexual advances
towards a man would not make such advances
towards a woman.
[15]. In
Meritor, the
Court held that an employer is not always
liable for sexual harassment by a
supervisor, and that whether an employer is
liable for such harassment is to be governed
by general principles of agency law, but
failed to explain how these principles would
apply to particular situations.
[16]. The cases indicated a
variety of theories for liability,
including: (1) the employer is liable
if the harassment can be said to have
involved a “quid pro quo” threat or promise,
even if unfulfilled; (2) the employer is
liable if the harassment can in some sense
be said to have been within the harasser’s
scope of employment or apparent authority;
(3) the employer is liable if the supervisor
can be said to have been aided by his
supervisory authority in accomplishing the
harassment; and (4) the employer is liable
if it knew or should have known of the
harassment, but failed to take prompt and
appropriate remedial action. The
Seventh Circuit’s en banc ruling in Ellerth
is a good illustration of the
diversity of approaches to this critical
issue, as it was a very lengthy decision
containing eight separate opinions and no
consensus for a controlling rationale.
123 F.3d 490 (7th
Cir. 1997) (consolidated for
appeal sub nom. Jansen v.
Packaging Corp. of America).
[17].
864 F.Supp. 1552 (S.D.Fla. 1994).
[18].
111 F.3d 1530 (11th
Cir. 1997).
[20]. “The agency relationship
affords contact with an employee subjected
to a supervisor's sexual harassment, and the
victim may well be reluctant to accept the
risks of blowing the whistle on a superior.
When a person with supervisory authority
discriminates in the terms and conditions of
subordinates' employment, his actions
necessarily draw upon his superior position
. . ., whereas an employee generally cannot
check a supervisor's abusive conduct the
same way that she might deal with abuse from
a co-worker. When a fellow employee
harasses, the victim can walk away or tell
the offender where to go, but it may be
difficult to offer such responses to a
supervisor . . . .”
524 U.S. at 782.
[22].
912 F.Supp. 1101 (N.D.Ill. 1996).
[23]. The plaintiff in
Ellerth claimed the manager told her he
could “make [her] life very hard or very
easy,” expressed reservations during a
promotion interview because she was not
“loose enough,” and said that if she wore
shorter skirts “it would make [her] job a
whole heck of a lot easier.”
[24].
123 F.3d 490 (7th
Cir. 1997).
[25]. Six judges agreed the proper
standard was vicarious (automatic)
liability, and therefore the plaintiff could
recover even though the employer was not
negligent. However, they each had different
reasons for this conclusion. Four of them
said vicarious liability applies only if the
claim involves a “quid pro quo,” and a
supervisor’s threat to inflict a tangible
job injury is a “quid pro quo” whether or
not the threatened action is taken. The
other two judges said vicarious liability
applies to most claims of sexual harassment
by supervisors, even absent a “quid pro
quo.” Other judges applied versions of a
negligence standard, under which the
employer is liable only if it knew or should
have known of the harassment but failed to
take appropriate remedial action.
[26]. See, e.g.,
Washington Post, June 27, 1998 (stating
that Faragher “sets a strict new
standard for harassment on the job and
raises the stakes for companies. . . .”); CNN June 26, 1998 (describing
Faragher as “a ruling that makes
employers easier targets for lawsuits”) (on
Internet at http://cnn.com/US/9806/26/scotus/index.html).
[29].
Id. As an example,
the Court stated that “a professional
football player’s working environment is not
severely or pervasively abusive, . . . if
the coach smacks him on the buttocks as he
heads onto the field--even if the same
behavior would reasonably be experienced as
abusive by the coach’s secretary (male or
female) back at the office.” Id.
[31].
118 S.Ct. at 2283-84.
[32]. See
524 U.S. at 777;
524 U.S. at 757. These statements may
be useful in defending against
tort claims such as assault, battery,
and intentional infliction of emotional
distress, because the general common-law
rule is that an employer is liable for the
tortious conduct of its employee only if the
employee was acting within the scope of
employment, so if harassment is not within
the scope of employment, as indicated by the
Court, the employer is not liable for it in
tort.
[33]. In
Ellerth, the
Court stated: “A tangible employment action
constitutes a significant change in
employment status, such as hiring, firing,
failing to promote, reassignment with
significantly different responsibilities, or
a decision causing a significant change in
benefits.” It cited with approval several
Circuit decisions for the proposition that a
“bruised ego,” reassignment to a less
convenient job, or demotion without change
in pay, duties, benefits, or prestige are
not tangible employment actions.
524 U.S. at 753.
[34]. See, e.g.,
Durham Life Ins. Co. v.
Evans, 166 F.3d 139 (3rd
Cir. 1999)
(depriving insurance agent of secretary and
office could constitute tangible employment
action; proof of direct economic harm is not
necessary if action substantially decreases
employee’s earning potential and causes
significant disruption in working
conditions);
Watts v. Kroger Co., 170
F.3d 505 (5th Cir. 1999)
(changing grocery employee’s work schedule
was not tangible employment action, nor was
expanding her duties to include mopping
floor, cleaning chrome, or requiring her to
check with her supervisor before taking
breaks). The EEOC Guidelines expansively
define “tangible employment action” to
include an “undesirable reassignment,” a
significant change in duties, or a change to
a less prestigious job title, even with no
change in pay or benefits. They also
provide that the affirmative defense is
unavailable where favorable tangible
employment actions, e.g., a promotion
or increase in pay or benefits, result from
submission to sexual harassment, as well as
where the employment action is unfavorable.
[35]. See, e.g.,
Montero v. Agco Corp.,192 F.3d 856 (9th
Cir. 1999) (plaintiff
claimed constructive discharge was tangible
employment action, but court avoided
deciding whether constructive discharge can
be such an action, finding she was not
constructively discharged). Constructive
discharge has been defined in the Eighth
Circuit as a resignation resulting from
intolerable working conditions
deliberately created by the employer with
the intent of forcing the employee to quit,
and proof that the employee resigned as a
reasonably foreseeable consequence of the
employer's discriminatory actions is
sufficient to establish the necessary
intent. See, e.g.,
Howard v. Burns Bros., Inc.,
149 F.3d 835 (8th Cir. 1998).
If the allegedly intolerable working
conditions include an ultimatum -- resign or
be terminated -- this would seem to clearly
be a “tangible employment action.” On the
other hand, if they involve only a claim
that the alleged sexual harassment was so
intolerable that a reasonable person would
resign, this would appear to be an ordinary
hostile environment situation to which the
affirmative defense should apply.
[36]. This has long been the
rule in the Eighth Circuit. See e.g.,
Hall v. Gus Constr. Co., 842 F.2d 1010 (8th
Cir. 1988).
[37]. Since
Faragher and
Ellerth, the courts have continued to
apply this negligence standard to co-worker
harassment. See
Curry v. Dist. Of Columbia,
___ F.3d ___, 1999 WL 999196 (D.C.Cir. Nov.
9, 1999)
(“Every circuit that has addressed co-worker
harassment in the ‘post-Faragher era’
has distinguished the standard applicable to
co-worker harassment from that governing
harassment by a supervisor, applying to the
former a variation of the negligence
standard the circuit had applied pre-Faragher).
Likewise, the EEOC Guidelines simply state
conclusorily that this standard remains in
effect for such harassment. The application
of this different standard to co-worker
harassment suggests the Faragher/Ellerth
affirmative defense is not applicable to
such harassment. But see
Shaw v. Autozone, Inc.,
180 F.3d 806 (7th Cir. 1999)
(affirming summary judgment for employer
based on affirmative defense without regard
to whether alleged harasser was a
“supervisor”).
[38]. Although often it might be
difficult for an employee who failed to take
such action to establish that the employer
knew of the harassment, they could contend
that the harassment was so widespread and
obvious the employer should have known of
it, or that the employer actually knew of
the harassment because a low-level
supervisor had such knowledge, even though
it was never directly communicated to the
appropriate persons under the employer’s
policy.
[39]. There are hints of this in
Faragher, 118 S.Ct. at 2294
(referring to negligence as an alternative
to a theory of vicarious liability), and
Ellerth, 119 S.Ct. at 2267
(negligence sets the minimum standard for
liability for supervisory harassment). In
Sims v. Health Midwest Physician Services Corp.,
___ F.3d ___, 1999 WL 1018663 (8th
Cir. 1999), the Eighth
Circuit appears to have viewed negligence as
an independent alternative the
