In the companion cases of Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) and Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), the United States Supreme Court articulated a new standard governing an employer's liability for the sexually harassing conduct of its supervisors. Prior to these decisions, many courts had relied upon the distinction between quid pro quo harassment and hostile work environment harassment, applying different standards of liability to each.
In Faragher and Burlington, the Court eschewed this differentiation as determinative of liability, holding instead that an employer is always vicariously liable for sexual harassment perpetrated by its supervisors. However, the Court also held that, when no tangible employment action is taken against the employee, the employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.
The affirmative defense has two elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. This article focuses on the manner in which lower courts have interpreted this standard.
Tangible Action
As stated above, the existence of a "tangible employment action" will render the affirmative defenses unavailable. The Court did not define this term precisely, but indicated that such an 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." Burlington, 118 S. Ct. at 2268. The Court instructed that a tangible employment action "in most cases inflicts direct economic harm." 118 S. Ct. at 2269.
Lower courts interpreting the phrase "tangible employment action" appear to have followed the Court's guidance as to the meaning of that term, finding that for a tangible employment action to exist, the act must be adverse and actually implemented. Thus, voluntary actions taken by plaintiff do not constitute a tangible employment action.
For example, in Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 268 (5th Cir. 1998) a teacher's voluntary withdrawal from extracurricular activities, because of anonymous mail and prank phone calls that she suspected were coming from the school's principal, did not constitute a "change in employment status." In Sconce v. Tandy Corp., 9 F. Supp. 2d 773 (W.D. Ky. 1998), a voluntary transfer to a lower paying job due to anxiety caused by implicit demands for sex is not a tangible employment action. And in Marsicano v. American Soc'y of Safety Eng'rs, No. 97-C-7819, 1998 WL 603128 (N.D. Ill. Sept. 4, 1998) a resignation was not a tangible employment action.
In Butler, the court also held that a change in plaintiff's grade assignments, rescinded before implementation, did not constitute such an action because it never was implemented. Similarly, unfulfilled threats or actions contemplated but not taken do not constitute a tangible employment action. One example of this, Burlington, 118 S. Ct. at 2265 (threat of retaliation for refusal to accede to sexual demands). Others are Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp. 2d 414 (S.D.N.Y. 1998) (threat of poor performance review) and Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953 (D. Minn. 1998) (repeating "it's okay" while committing sexual assault is not an act of coercion that implies that refusal to submit to advances would result in retaliation or dismissal).
Courts are less uniform in their assessments of the termination of the plaintiff as a tangible employment action. In Harper v. Casey, Civ. A. 95-7704, 1998 WL 614768 (E.D. Pa. Sept. 14, 1998), the Eastern District of Pennsylvania held that the plaintiff's termination was a tangible employment action, precluding the employer from asserting the affirmative defense. On the other hand, the Western District of Virginia held the affirmative defenses were available to the employer, because the tangible employment action - the plaintiff's termination - was taken by a supervisor other than the harassing supervisor:
though the Supreme Court does not explicitly state that the tangible employment action required to disable the affirmative defense must be taken by the harassing supervisor, that is the most logical interpretation of the Court's discussion of the matter. Even though a tangible employment action was taken against [the plaintiff], because it was not taken by the supervisor who allegedly created the hostile work environment, the employer defendants in this case may try to avoid liability by invoking the Faragher-Burlington Industries affirmative defense.
Corcoran v. Shoney's Colonial, Inc., 24 F. Supp. 2d 601, 606 (W.D. Va. 1998)
At least one court has held that an employer is not deprived of the opportunity to avail itself of the affirmative defenses when a tangible employment action, such as termination, does occur but is unrelated to the harassment. Fierro v. Saks Fifth Avenue, 13 F. Supp. 2d 481 (S.D.N.Y. 1998).
Reasonable Care
The Supreme Court did not delineate any specific actions an employer must take in order to satisfy the first prong of the affirmative defense, that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior. The Court did state that a written policy prohibiting harassment may not necessarily be a prerequisite to asserting the defense successfully: while proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for the stated policy suitable to the employment circumstances may appropriately be addressed in any case.
Burlington, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2293
However, without such a policy, an employer might be hard-pressed to make the factual showing required to establish that it took reasonable care to prevent sexual harassment. Indeed, the Fourth Circuit appears to have interpreted Faragher to require a sexual harassment policy, except in the case of small employers who might use successfully more informal means to prevent and correct promptly sexually harassing behavior. Lissau v. Southern Food Service, Inc., 159 F.3d 177, 183 (4th Cir. 1998).
In Faragher, the defendant City of Boca Raton did have a sexual harassment policy but did not disseminate it to the employees in the plaintiff's work division. The City was thus unable to present an affirmative defense because it failed to disseminate its policy, and its officials made no effort to keep track of the conduct of its supervisors. A recent decision by the Tenth Circuit Court of Appeals reinforces the necessity of making employees aware of the provisions of sexual harassment policies.
In the case of Harrison v. Eddy Potash, Inc., 158 F.3d 1371 (10th Cir. 1998), the court reversed a grant of summary judgment to the employer, and remanded for a finding as to its liability for the supervisor's harassing conduct. In remanding the case, the court rejected the employer's position that the evidence adduced at trial was already sufficient to establish the affirmative defense, as it had established that it had promulgated a sexual harassment policy that the plaintiff did not use.
On the contrary, the court noted that the evidence indicated that the plaintiff had not been made aware of the policy. Therefore "the evidence presented appears to pose serious questions concerning the reasonableness of [the employer's] conduct in preventing sexual harassment in the workplace." Id. at 1377. Similarly, in Booker v. Budget Rent-A-Car Systems, 17 F. Supp. 2d 735 (M.D. Tenn. 1998), a case involving allegations of hostile work environment based upon race, the court denied the defendant's motion for summary judgment, finding that the employer could not prove the affirmative defense as it had no proof it ever distributed its harassment policy, or trained management with respect to racial harassment. Thus it could not establish it took reasonable care to prevent harassment, and failed to take prompt corrective action despite receiving notice on three occasions of the conduct.
In Cadena v. Pacesetter Corp., 18 F. Supp. 2d 1220 (D. Kan. 1998), the employer's failure to take the plaintiff's complaint seriously precluded the grant of summary judgment. The plaintiff's supervisor took no action upon her first complaint of harassment by another supervisor. Upon her second complaint, the supervisor said of the harassing supervisor "he gets crazy when he's stressed out" and did nothing further.
Two weeks after the complaint, and after the plaintiff resigned, the supervisor relayed one of her complaints to the company's vice-president. The vice-president offered the plaintiff a pay raise if she would return to work and drop the harassment complaint. He also told her that she was attractive, speculated that this was why the harasser said the things he did, and stated that she should view the harasser's attraction to her as a compliment.
In considering the reemployment offer, the plaintiff asked the supervisor to whom she had originally complained if he thought the harassment would stop if she returned. The supervisor said the harasser would never be fired because he brought too much money into the office, and that her life "would be hell" if she returned to work. She did not return and instituted a lawsuit.
The employer moved for summary judgment on plaintiff's hostile work environment claim, arguing that it had a sexual harassment policy and that it responded to the plaintiff's complaint. The court, however, denied the motion, finding there were disputed issues of material fact as to whether the defendant took reasonable care to prevent and correct the sexually harassing behavior. The court specifically noted (i) the failure to respond adequately to both complaints, (ii) the supervisor's attributing to stress the harassing comments of the supervisor; (iii) the "arguably untimely" investigation by the vice-president; and (iv) the fact that the plaintiff's pay raise was conditioned on dropping her complaint of discrimination.
The court also held that supervisor's comment that the plaintiff's life "would be hell" if she returned to work "suggests that the defendants should have implemented other corrective measures, including reassignment, so that [the harasser] had no contact with the plaintiff." The court also found fault with the investigation because the vice-president failed to interview employees who might have witnessed the harassment.
The existence of a sexual harassment policy, along with the employer's prompt response to the plaintiff's complaint and an offer of reassignment where the alleged harasser would have minimal supervisory responsibility for the plaintiff's work, resulted in a different result in the Marsicano, case, supra. There, those factors were held sufficient to uphold the employer's burden of exercising reasonable care to prevent and correct sexually harassing behavior. The plaintiff had refused to continue her employment after being offered a transfer minimizing the alleged harasser's contact with her. This, the court held, coupled with her failure to bring her complaint of harassment to the company's attention earlier, constituted an unreasonable failure to take advantage of preventive and corrective opportunities offered by her employer, warranting the issuance of summary judgment to the employer.
Failure To Take Advantage
The Supreme Court stated, in Faragher, that "[w]hile proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense." 118 S. Ct. at 2279, 2293
In Speight v. Albano Cleaners, Inc., 21 F. Supp. 2d 560 (E.D. Va. 1998), summary judgment was granted to the employer where the plaintiff knew of the sexual harassment policy, but failed to take advantage of the corrective opportunities provided by it. The plaintiff failed to complain of the harassment, despite the fact that she had phone conversations with the president, and a conversation and meeting with a supervisor during which they discussed salary and holiday pay issues.
In another case, a federal court in California held that waiting two years to complain is unreasonable. It rejected the plaintiff's argument that her fear of retaliation by the harassing supervisor rendered the delay reasonable, especially in light of the fact that the employer's harassment policy permitted employees to bypass their supervisors in filing a complaint. Montero v. AGCO Corp, 19 F. Supp. 2d 1143, 1146 (E.D. Cal. 1998) ("Plaintiff ha[s] offered no evidence to support her belief that the policy would not be honored.") (footnote omitted).
In fact, at least two other courts have held that generalized fears of repercussion and unpleasant outcome does not constitute reasonable grounds for failing to complain to an employer about a supervisor's harassment. In the Fierro, case, the Court held, as a matter of law,". . . that such generalized fears can never constitute reasonable grounds for an employee's failure to complain to his or her employer." 13 F. Supp. 2d at 492
In the Sconse case, the court concluded that". . . a threat of termination, without more, is not enough to excuse an employee from following procedures adopted for her protection." 9 F. Supp. 2d at 778. However, it is apparent that in some cases, the plaintiff's failure to avail herself of the complaint procedure in the employer's sexual harassment policy will not be held to be unreasonable.
This was the case in Johnson v. Brown, No. 94-C-6530, 1998 WL 483521 (N.D. Ill. Aug. 10, 1998), a case involving physical intimidation and in Corcoran, where a failure to complain until the harassment escalated was at issue. As the Corcoran court stated,
Though unwanted sexual remarks have no place in the work environment, it is far from uncommon for those subjected to such remarks to ignore them when they are first made. In [the plaintiff's] case, the facts indicate that isolated remarks were made and that for a long period nothing further occurred. The court cannot say that it was unreasonable for [the plaintiff] to remain silent during this period. When, however, the sexual harassment became virtually impossible to ignore, [the plaintiff] took immediate action. 24 F. Supp. 2d at 606-607.
Non-Sexual Situations
A number of courts have extended the Faragher/Burlington analysis to allegations of a hostile work environment predicated on factors other than sex. As the Tenth Circuit has noted, in Faragher the Supreme Court expressed a preference for harmonizing the standards applied in cases of racial discrimination and sexual discrimination: [a]lthough racial and sexual harassment will often take different forms, and standards my[sic] not be entirely interchangeable, we think there is good sense in seeking generally to harmonize the standards of what amounts to actionable harassment.118 S. Ct. at 2283 n.1.
Accordingly, the Tenth Circuit applied the supervisory liability analysis to a case involving a racially hostile environment. Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264 (10th Cir. 1998).
The Faragher/Burlington analysis also has been applied to allegations of hostile environment based upon national origin, (Fierro, 13 F. Supp. 2d 481) and to allegations of a racially discriminatory discharge, (Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581 (5th Cir. 1998)). And claims under the Americans with Disabilities Act. Wallin v. Minnesota Dep't of Corrections, 153 F.3d 681 (8th Cir. 1998), petition for cert. filed, 67 U.S.L.W. 3410 (U.S. Dec. 21, 1998) (No. 98-1007); Vendetta v. Bell Atl. Corp., Civ. A. 97-4838, 1998 WL 575111 (E.D. Pa. Sept. 8, 1998).
Who Is A Supervisor?
The Supreme Court did not define what constitutes a supervisor for the purposes of imputing liability. The Seventh Circuit has concluded that a supervisor for this purpose is one with ". . . the authority to affect the terms and conditions of the victim's employment. This authority primarily consists of the power to hire, fire, demote, promote, transfer or discipline an employee." Parkins v. Civil Constructors of Illinois, Inc., No. 98-1687, 1998 WL 909885 at *4 (7th Cir. Dec. 30, 1998).
However, in Grozlanish v. Leisure Hills, supra, the district court held that one does not have to have the power to hire and fire to be considered a supervisor under Title VII. Employers can expect this issue will be further examined as more cases arise.
As an employer's efforts to prevent and correct sexual harassment now have direct bearing on its liability, the implementation and dissemination of a comprehensive harassment policy, as well as the implementation of supervisory training in recognizing and reporting harassment, are no longer luxuries employers can afford to forgo.
The information provided herein is for general guidance on matters of interest only. While every effort has been made to ensure the information provided herein is accurate and timely, no decision should be made or action taken on the basis of information without first consulting an Epstein Becker & Green professional.
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