Sexual harassment by supervisors: how well do you know who you are promoting?
This article discusses the extent to which employers may be liable for the improper sexual conduct of supervisors. This includes how, in some cases, the employer may not even have the opportunity to offer a defense to liability.
WHAT IS SEXUAL HARASSMENT?
The conduct that falls within the ambit of Title VII of the Civil Rights Act must first of all be conduct that occurs because of one's sex. Conduct may be vulgar, hostile, and offensive, but unless the plaintiff is able to establish that it is conduct motivated because of the plaintiff's sex, it is not actionable under Title VII as "sexual harassment." (5) For example, in Succar v. Dade County, (6) a schoolteacher brought a sexual harassment claim against his school district alleging that it failed to eliminate a hostile environment caused by a co-worker with whom he had terminated a relationship. He claimed that she demeaned and ridiculed him and otherwise subjected him to a hostile environment. The circuit court agreed with the lower court's conclusion that the conduct was not because he was a male but, rather, a result of the acrimonious end to their relationship. (7)
Related to the requirement that the harassment be because of the gender of the person, as opposed to the sex being merely coincidental, is the supreme Court's ruling in Oncale v. Sundowner Offshore Services. (8) In this case, the Supreme Court held that same-sex harassment also is covered by Title VII when it is established that the offensive conduct was directed at the victim because of the person's sex.
Traditionally, once the conduct was determined to be based on gender, it then would be categorized as either quid pro quo sexual harassment or hostile work environment. While these terms are not found within Title VII of the Civil Rights Act, their role in determining whether an employer should be held liable became well established. (9)
Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment is predicated upon a showing by employees that their response to unwelcome sexual advances was subsequently used as the basis for a tangible employment action. (10) Establishing a link between the unwelcome, improper sexual conduct and the employer's action is crucial to proving quid pro quo sexual harassment.
Hostile Work Environment
The extent to which Title VII of the Civil Rights Act encompasses hostile conduct arising in the work environment has been well recognized since the U.S. Supreme Court's decision in Meritor Savings Bank, FSB v. Vinson. (11) In Meritor, the Supreme Court stated that the conduct, first of all, must be unwelcomed, and then emphasized that it must be so severe and pervasive as to "alter the conditions of [the victim's] employment and create an abusive working environment." (12)
An in-depth study of what specific behaviors and actions would create a hostile environment is not within the scope of this article. However, a few general principles have been offered to aid in assessing whether conduct has crossed the line. First, the Supreme Court has held that to be actionable under Title VII, a sexually objectionable environment must not be only objectionable in the eyes of a victim but a reasonable person of that gender also must conclude that it would be objectionable. (13) In addition, all of the circumstances surrounding the conduct should be considered, including the frequency of the objectionable conduct, its severity, whether it is physically threatening or humiliating or simply utterances or gestures, and whether it interferes with the victim's ability to work. (14)
Employers have been held to a strict standard of liability, referred to as vicarious liability, for the sexually harassing conduct of supervisors, enabling employees alleging they were the victims of sexual harassment to hold employers liable without the need to establish knowledge or constructive knowledge of the offending conduct and failure to remedy it on the part of the employer. If the nature of the sexual harassment was quid pro quo, the employer had no defense to the claim. If it was hostile environment harassment, the employer still was vicariously liable but could assert a defense by proving it had preventive and corrective policies in place and establishing that the victim employee unreasonably failed to take advantage of the policies. While the terms quid pro quo and hostile environment still have significance when discussing sexual harassment, as a result of recent Supreme Court cases, their role in establishing employer liability for sexually harassing conduct engaged in by supervisors has diminished.
LIABILITY FOR HARASSMENT
In 1998, the U.S. Supreme Court handed out decisions in two sexual harassment cases, Burlington Industries, Inc., v. Ellerth (15) and Faragher v. City of Boca Raton, (16) retaining the vicarious liability standard for the harassing conduct engaged in by supervisory employees but bringing an end to consideration of the type of harassment as determining whether the employer may assert a defense to liability. As a result of these cases, employers are vicariously liable for the sexually harassing conduct of their supervisors visa-vis subordinate employees regardless of whether the employer knew of the conduct and regardless of what type of sexual harassment is involved. However, the Supreme Court ruled that in cases where the harassment culminates in a tangible employment action, the employer is vicariously liable regardless of whether the employer had preventive anti-harassment policies in place and regardless of whether the employer took remedial action once learning of the conduct. (17)
Rationale for Vicarious Liability
Given the significance of applying vicarious liability as the appropriate standard as opposed to negligence which would require a showing of knowledge on the part of the employer, it is important to understand which employees within the organization may subject their employer to this harsher standard and under what circumstances. The answer to this is not as easy as simply identifying who acts as the supervisor of the victim employee. In Ellerth, the Supreme Court provided guidance in determining who may subject the employer to vicarious liability for engaging in sexually offensive conduct by directing that the focus should be on whether the offending employee was aided in the misconduct because of his or her position with the employer. In other words, the victim is in a more vulnerable position because of the authority granted or delegated to the offender. (18)
In most civil actions involving claims against an employer for harm caused by employees, the employer is subject to liability for the harm caused by the employee provided the employee was acting within the scope of employment. (19) Thus, liability often is created by a combination of the employment relationship and the conduct causing the harm occurring within the scope of the employee's duties. In the context of sexual harassment, the Supreme Court rejected the notion that this analysis should dictate the outcome as sexual harassment by a supervisory employee if it is not generally within the scope of employment. Instead, the Supreme Court held that the appropriate analysis centers on whether the employees alleged to have engaged in the offensive conduct were aided due to their relationship to the employer or because of the delegation of authority through the employment relationship. (20) The Supreme Court further commented that in cases involving a tangible employment action, the agency relationship or delegation of authority is evident because of the existence of the employment action itself. In other words, it is attributable to an official action of the agency. As stated by the Supreme Court, "[t]he supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control." (21)
When no tangible employment action results, the relationship between the offender and the employer is not so apparent. Therefore, the employer still is vicariously liable but is able to interpose a defense by showing it had antiharassment preventive and corrective policies in place that the victim employee unreasonably failed to take advantage of. As stated by the Supreme Court:</p> <pre> [A] tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer. ... Whether the agency relation aids in the commission of supervisor harassment which does not culminate in a tangible employment action is less obvious. On the one hand, a supervisor's power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relationship. ... On the other hand, there are acts of harassment a supervisor might commit which might be the same acts a coemployee would commit, and there may be some circumstances where the supervisor's status makes little difference. (22) </pre> <p>In other words, determining whether the employer can offer a defense to liability is appropriate may not necessarily hinge on the authority level of the offender. Instead, what also must be considered is whether an employment action impacting the employee relates back to the authority of the employer.
Tangible Employment Actions
In Ellerth, the plaintiff alleged that she was subjected to numerous and repeated offensive remarks and boorish behavior on the part of a supervisor in the company for which she worked. She claimed that the remarks could be taken as threatening in nature in that if she did not submit to his requests, he would retaliate. Thus, she framed her theory of harassment as quid pro quo harassment.
Burlington Industries countered, arguing that it was hostile environment harassment and asserted a defense to liability, arguing that the plaintiff never had complained of the offensive behavior and, therefore, it did not have knowledge nor could it have reasonably known of the conduct and, thus, should not be liable. The lower court decisions in this case reflect disagreement as to whether the conduct should be characterized as quid pro quo or hostile work environment harassment. (23) Resolution of this issue was critical to the lawsuit's outcome until the Supreme Court intervened and rejected the notion that the type of sexual harassment should dictate the outcome in cases involving supervisory level harassment, shifting the focus from the type of harassment to whether the employee was subjected to a tangible employment action. (24)
In Ellerth, the Court provided the following definition of tangible employment action:</p> <pre> 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. (25) </pre> <p>Clearly, there will be many cases in which the existence of a tangible employment action will be indisputable. In Ellerth, the Supreme Court provided some examples that would constitute tangible employment actions, such as demotion with a decrease in salary, termination, less responsibilities, and loss of benefits. (26) A tangible employment action is not, however, always so easy to identify. To guide in determining whether a tangible employment action was taken, the Supreme Court described the types of actions that can result in liability as actions that often result in financial harm and require an official act of the employer often carried out by a supervisor who has been given the authority to act for the employer. (27)
With liability for supervisory-level sexual harassment often hinging on whether a tangible employment action was taken as opposed to the type of sexual harassment, any decisions affecting the employee will be closely scrutinized. For example in Dedner v. Oklahoma, (28) the plaintiff, a correctional food service supervisor, alleged that her supervisor engaged in offensive and unwelcomed sexual conduct over a period of time. She complained to her employer, the State of Oklahoma Department of Corrections, about the offending conduct.
An internal investigation was initiated, and he was fired. The victim employee brought a Title VII action against her employer, alleging a tangible employment action was taken against her when her supervisor conditioned benefits in the form of what days off she would have on her willingness to engage in sex with him. The parties agreed that sexual harassment occurred. They disagreed as to whether the harassment resulted in a tangible employment action. The federal district court judge held that allowing an employee to take certain days off does not amount to a change in benefits or status as contemplated by the Court in Ellerth, and, thus, no tangible employment action was taken. (29)
Constructive Discharge as a Tangible Employment Action
While the typical case involves an employer-initiated employment action, the Supreme Court was presented with the issue of whether a decision by an employee to resign could be a tangible employment action giving rise to liability. In Pennsylvania State Police v. Suders, (30) a former employee sued her former employer, the Pennsylvania State Police (PSP), alleging that her decision to resign was in response to sexual harassment caused in part by her supervisor for which the PSP should be accountable.
The lower federal court dismissed the lawsuit holding that the employer took no adverse tangible employment action against her given that she resigned, enabling the PSP to defend itself under the Ellerth-Faragher affirmative defense. (31) The court then accepted the agency's effort to defend itself by demonstrating it had preventive and corrective policies in place of which she failed to take advantage. On appeal to the Federal Court of Appeals in the Third Circuit Court, the court disagreed with the lower court in a couple of significant ways. First, the circuit court concluded that there were critical issues still to be resolved with respect to the preventive and corrective polices the PSP had in place to address harassment. In addition, the circuit court concluded that material issues of fact remain with respect to whether the plaintiff had established that she was constructively discharged due to the hostile work environment and, perhaps, most important, if she was constructively discharged, whether that would amount to a tangible employment action, meaning no defense to liability could be offered. (32) The question of whether a constructive discharge would amount to a tangible employment action was appealed to the Supreme Court.
The Supreme Court agreed with the circuit court that a constructive discharge could be regarded as a tangible employment action on the part of the employer. (33) In deciding whether the decision to resign should be attributable to the employer in the form of a constructive discharge, the Court stated that the employee "must show working conditions so intolerable that a reasonable person would have felt compelled to resign." (34)
Once a case for constructive discharge is made by the plaintiff, it does not automatically preclude the possibility that the employer can raise the Ellerth-Faragher defense. The Supreme Court distinguished an actual termination of an employee with a constructive discharge, stating that "[u]nlike an actual termination, which is always effected through an official act of the company, a constructive discharge need not be." (35) Accordingly, if the employer can establish that the constructive discharge did not derive from an official act of the agency, then it may assert a defense to liability by showing what preventive and corrective antiharassment policies it had in place and that the employee unreasonably failed to take advantage of them (Ellerth-Faragher defense). If it is established that the constructive discharge derived from official acts of the employer, then no defense is available.
To illustrate the significance of the official act, the Supreme Court cited Reed v. MBNA Marketing Systems, Inc., (36) a case involving a claim of constructive discharge based on the victim's assertion that her supervisor made repeated sexual comments and assaulted her. The Federal Court of Appeals for the First Circuit held that as the supervisor's actions involved no official act on the part of the employer and, in fact, is not at all authorized, the employer could raise the Ellerth-Faragher defense to vicarious liability. In contrast, the Court referred to Robinson v. Sappington (37) to illustrate the role of official action in a constructive discharge. In this case, the plaintiff complained that she was sexually harassed by the judge for whom she worked. The presiding judge told her he would reassign her to another judge, but he had a reputation for being very difficult, and that "it was in her best interest to resign." (38) The decision to resign was, therefore, at least in part, attributable to an official act of the employer.
The Continuing Need for Policy and Training
Despite the recent changes in the law relating to sexual harassment, one constant remains--employers should continue to demonstrate a strong commitment to the elimination of sexual harassment in the workplace. Employers should promulgate and post a policy statement on sexual harassment, including a clear description of the procedures to follow for reporting complaints. In addition, employers should assess their management training programs to determine whether they adequately address the issue of workplace harassment. Such training should include discussion of what constitutes unlawful conduct, what managers must do when they become aware of such conduct, and the process established by the employer for reporting complaints.
As much as law enforcement professionals prefer clear and exact legal principles to guide them in their decision making in the workplace, the intricacies of the law makes this impossible. However, one constant in all employment settings is that they are made up of human beings with their own perceptions. The human factor is, perhaps, most evident when it comes to the interpretation of statutory provisions addressing conduct in the workplace occurring because of gender, in other words, sexual harassment. Recently, the Supreme Court provided guidance in assessing the liability of an employer for sexually offensive conduct engaged in by supervisors within the workplace. Central to this guidance is that liability no longer is based on the type of sexual harassment that occurred. Instead, the initial focus centers on whether there was a tangible employment action taken by or which can be attributed to the employer. Only in cases where no tangible action was taken will an employer be able to point to the preventive and corrective measures it has adopted to defend itself.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
(1) 42 U.S.C. [section] 2000e-2(a) provides as follows:
[section] 2000e-2. Unlawful employment practices
a) Employer practices
It shall be an unlawful employment practice for an employer--
1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
(2) Williams v. Saxbe, 413 F.Supp. 654 (D.D.C. 1976) (sexual harassment actionable as discrimination on the basis of gender). In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the U.S. Supreme Court held that Title VII prohibits sexual harassment even in situations where an employee does not suffer economic loss and even if the conduct was consensual, as long as it was unwelcomed.
(3) Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82 (1998). See also Hartsell v. Duplex, 123 F.3d 766 (4th Cir. 1997) (court refused to recognize demeaning remark as actionable under Title VII, stating that Title VII does not guarantee sophistication or proper behavior in the workplace; it only prohibits conduct that is so severe or pervasive as to create an objectionably reasonable hostile or abusive environment).
(4) Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
(5) Ocheltree v. Scollon Productions, Inc., 335 F.3d 325 (4th Cir. 2003).
(6) 229 F.3d 1343 (11th Cir. 2000).
(7) See also Holman v. State, 211 F.3d 399 (7th Cir. 2000) (Lower court decision to dismiss complaint alleging sexual harassment upheld on appeal on the basis that victims, a husband and wife who worked for the same supervisor, could not be subjected to offensive conduct based on gender as the "equal opportunity" harasser offended both genders).
(8) 523 U.S. 75 (1998).
(9) See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 753-754, citing Davis v. Sioux City, 115 F.3d 1365, 1367 (8th Cir. 1997); Nichols v. Frank, 42 F.3d 503, 513-514 (9th Cir. 1994).
(10) Robinson v. City of Pittsburgh, 120 F.3d 1286 (3rd Cir. 1997); Speaks v. City of Lakeland, Florida, 315 F.Supp.2d 1217 (M.D. Fla. 2004).
(11) 477 U.S. 57 (1986). See also Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
(12) Faragher at 786, quoting Meritor at 67.
(13) Harris v. Forklift Systems, Inc., at 21-22.
(14) Id. at 23. See also Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).
(15) 524 U.S. 742 (1998).
(16) 524 U.S. 775 (1998).
(17) Id. See also, Leopald v. Baccarat, 239 F.3d 243 (2d Cir. 2001).
(18) Ellerth at 754-755.
(19) See Restatement (Second) of Agency, [section] 219(1).
(20) Ellerth at 760-762. See also Faragher v. City of Boca Raton, 524 U.S. 775, 784 (1998).
(21) Id. at 762.
(22) Id. at 762-763.
(23) Id. at 749-750.
(24) Id. at 754.
(25) Id. at 761.
(27) Id. at 762.
(28) 42 F.Supp.2d 1254 (E.D.Oklahoma 1999).
(29) Id. at 1258. As to the second basis for liability under Ellerth-Faragher, the Court held that the state took reasonable care to prevent and correct harassment and that she unreasonably failed to take advantage of the preventive or corrective policies of the state by waiting nearly 3 months to complain about the offending conduct, after the second incident already had occurred. Id. at 1260.
(30) 542 U.S. 129 (2004).
(31) See Brief for Appellant in No. 01-3512, p. 2
(32) Suders v. Easton, 325 F.3d 432 (3rd Cir. 2003).
(33) Suders at 141.
(35) Id. at 142 (emphasis supplied).
(36) 333 F.3d 27 (1st Cir. 2003), cited in Suders at 140.
(37) 351 F.3d 317 (7th Cir. 2003), cited in Suders at 140.
(38) Suders at 140, quoting Robinson v. Sappington, 351 F.3d 317, 324 (7th Cir. 2003).
By LISA A. BAKER, J.D.
Special Agent Baker is chief of the Legal Instruction Unit at the FBI Academy.