The Journal of The DuPage County Bar Association

Back Issues > Vol. 11 (1998-99)

Ellerth and Faragher: The Second Generation of Sexual Harassment Law
By Camille N. Khodadad

Introduction

In a recent case, the Fifth Circuit noted how the United States Supreme Court has made dramatic changes in the law of sexual harassment:

We are witnesses to the birth of a second generation of sexual harassment law. The first generation was heralded by the D.C. Circuit’s decision in Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977), and the publication in 1979 by Catharine A. MacKinnon of Sexual Harassment of Working Women in 1979. It reached maturity with Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L.Ed.2d 49 (1986), in which the Supreme Court held that a hostile work environment could create a valid Title VII claim.

At the center of the second generation of sexual harassment law are four important cases the Supreme Court decided last Term. See Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) . . . Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257 (1998) . . . Gebser v. Lago Vista Ind. Sch. Dist., 118 S. Ct. 1989 (1998) . . . Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998 (1998).

Butler v. Ysleta Ind. Sch. Dist., 161 F.3d 263, 267 (5th Cir. 1998).

As the Fifth Circuit recognized in Butler, the law of sexual harassment changed dramatically with the Supreme Court’s 1998 decisions. In Ellerth and Faragher, the Court set forth new standards for determining when an employer may be held liable for a supervisor’s sexual harassment. This article will discuss the state of the law prior to these new cases, describe the Ellerth and Faragher opinions, and review how lower courts have applied the new standard to harassment cases.

Title VII’s Prohibition of Sexual Harassment — A Historical Perspective

Title VII of the Civil Rights Act ("Title VII") prohibits discrimination by employers on the basis of sex, but it never mentions "harassment" 42 U.S.C. 2000e-2(a)(1). The prohibition against sex discrimination was included in the Act at the last minute by an opponent who thought that adding "sex" would prevent its passage. I 10 Cong. Rec. 2577-2584 (1964). Accordingly, sex discrimination received very little discussion during the legislative hearings. As a result, there is little in the legislative history to guide courts in interpreting the Act’s prohibition against sex discrimination, much less harassment. Before last year, the Supreme Court had spoken only twice about the issue of sexual harassment.

A. Meritor Savings Bank, FSB v. Vinson

Before 1986, many federal courts had concluded that sexual harassment was a form of sex discrimination prohibited by Title VII. The Supreme Court endorsed that view in its landmark decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). In Meritor, the plaintiff alleged that her supervisor forced her to have sexual relations with him, fondled her in front of other employees, followed her into the women’s restroom, exposed himself to her, and raped her. Id. at 60. According to the plaintiff, she submitted to her supervisor’s sexual advances because she feared losing her job. The Supreme Court held that this kind of harassment was a form of unlawful sex discrimination and that Title VII’s prohibition against sex discrimination included the right to work in an environment free from sexual harassment.

The Court in Meritor specifically held that a plaintiff could establish a Title VII violation by demonstrating that the sexual harassment created a hostile or abusive work environment, without also demonstrating economic or tangible injury. Id. at 65-67. The Court made it clear that sexual harassment was not actionable unless it was "sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment" Id. at 67. In addition, it had to be "unwelcome" Id. at 68. Regarding welcomeness, the Court noted that the "correct inquiry is whether [the victim] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual harassment was voluntary." Id.

B. Harris v. Forklift Systems, Inc.

The second sexual harassment case to be decided by the Supreme Court was Harris v. Forklift Systems, Inc., 114 S. Ct. 367 (1993). In that case, the Supreme Court was asked to decide whether an employee must suffer a psychological injury in order to have an actionable hostile environment sexual harassment claim. In Harris, the plaintiff alleged that the Company"s president had asked her to retrieve coins from his pants pocket, made sexual innuendos about her clothing, suggested that they go to a local motel to negotiate her raise, and asked if she received business by providing sex to a client. The trial court dismissed the plaintiff’s lawsuit, finding that her supervisor’s conduct did not cause the plaintiff severe psychological injury. Id. at 370.

The Supreme Court reversed the trial court’s decision and held that psychological injury is not a prerequisite for an actionable hostile environment claim. It noted:

Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.

But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.

Harris, 114 S. Ct. at 370-71.

The Supreme Court stated that the following factors determined whether a work environment was hostile: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it was physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interfered with an employee’s work performance. Id. at 371. Although these factors were helpful in determining whether there was an actionable hostile environment claim, the Court still did not provide a "bright line" test for making a conclusive determination.

C. Quid Pro Quo and "Hostile Environment" Sexual Harassment

In Meritor, the Supreme Court established that the two types of sexual harassment claims previously recognized by lower courts, quid pro quo and hostile environment, are actionable under Title VII. When employment decisions were based on an employee’s submission to or rejection of unwelcome sexual conduct, or when sexual conduct was either explicitly or implicitly a term or condition of an individual’s employment, courts said the harassment was of the quid pro quo variety. When unwelcome sexual conduct "unreasonably interfer[ed] with an individual’s work performance" or created an "intimidating, hostile, or offensive working environment," the harassment fell into the "hostile environment" category. Vinson, 477 U.S. at 65-67.

The terms quid pro quo and "hostile environment" took on great significance in sexual harassment litigation. Most courts held that the type of sexual harassment — quid pro quo v. hostile environment — determined whether an employer was liable for its supervisors’ conduct. As a general rule, an employer was automatically liable for quid pro quo harassment by those supervisory employees who had authority over the hiring, firing, promotion or discipline of the plaintiff or who had significant input into personnel decisions concerning the plaintiff, even when the employer did not know and could not have known about the harassment..

In contrast, most courts held that an employer was not automatically liable for hostile environment sexual harassment. With respect to that type of harassment, they concluded that an employer was liable for acts of its supervisory and non-supervisory employees only if the employer "knew or should have known of the harassment" and failed to take proper remedial action. See Nash v. Electrospace Sys., Inc., 9 F.3d 401 (5th Cir. 1993); Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 320 (7th Cir. 1992); Hirschfeld v. New Mexico Corrections Dep’t, 916 F.2d 572 (10th Cir. 1990).

The New Standard for Supervisor Liability

In Ellerth and Faragher, the Supreme Court changed the rules regarding when an employer is liable for sexual harassment by its supervisory employees. It rejected the quid pro quo v. hostile environment analysis, and instead set forth a standard of strict liability for supervisor harassment. In creating this new standard, the Court did not, however, eliminate the use of the terms quid pro quo and hostile environment.

We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII.

Ellerth, 118 S. Ct. at 2265.

Although employers are now strictly liable for supervisor harassment, the Court did create an affirmative defense for employers in cases where the employee suffered no "tangible employment action."

A. Burlington Industries, Inc. v. Ellerth

In Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), the plaintiff, a salesperson, contended that she was continually harassed by the mid-level manager to whom her supervisor reported. Id. at 2262. According to the plaintiff, this manager invited her to the hotel lounge while they were on a business trip and made comments about her breasts. When plaintiff gave him no encouragement, he allegedly said "[y]ou know, Kim, I could make your life very hard or very easy at [the Company]." Id. The manager also allegedly said to plaintiff: "Are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier."

On another occasion, when plaintiff was being considered for a promotion, the manager allegedly expressed concern about giving her the promotion because she was not "loose enough," and he then leaned over and rubbed plaintiff’s knee. Id. When the manager called the plaintiff to tell her that she got the promotion, he allegedly said, "you’re gonna be out there with men who work in factories, and they certainly like women with pretty butts/legs." Id.

Plaintiff contended that the manager’s comments constituted threats to alter her terms and conditions of employment. However, there was no indication that the manager ever followed through on any of those threats. Ellerth never complained to the company about the manager’s harassment. Instead, shortly after her supervisor cautioned her about failing to return customer telephone calls promptly, she quit. Three weeks later, she complained for the first time about the alleged harassment. Id.

Ellerth filed suit against the Company, alleging that she was sexually harassed and constructively discharged. Id. at 2263. The trial court granted the employer’s motion for summary judgment, concluding that there was no liability because the plaintiff had not shown that the company knew or should have known about the managerr’s alleged conduct. The Court of Appeals for the Seventh Circuit en banc reversed that decision. Id.

In the appeal from the Seventh Circuit’s decision, the Supreme Court was asked to decide whether an employer is automatically liable when a supervisor creates a hostile work environment by making explicit threats to alter a subordinat’s terms or conditions of employment (based on sex), but does not fulfill the threats. The view of most lower courts was that an employer would be liable for a hostile environment created by its supervisors only if the employer knew or should have known about the behavior and failed to take prompt remedial action. The Supreme Court disagreed with that view. Instead, it held that:

an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.

118 S. Ct. at 2270.

The Court also held, however, that an employer can raise an affirmative defense and avoid strict liability for supervisor harassment if the employee is not subjected to a "tangible employment action." It stated:

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages . . . . The defense comprises two necessary 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.

Id.

But, in a statement sure to strike fear in the hearts of employers, the Court added: No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Id.

The Supreme Court remanded the case to the trial court to allow the employer an opportunity to establish that the affirmative defense would protect it from liability. It also hinted that the trial court could give Ellerth an opportunity to establish that she did suffer a tangible job action (presumably, constructive discharge) that would preclude the company from relying upon the affirmative defense. Id. at 2271.

B. Faragher v. City of Boca Raton

In Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), Beth Ann Faragher, a lifeguard in Boca Raton’s Marine Safety Section, resigned from her position and sued her employer for creating a "sexually hostile atmosphere" at work. Id. at 2279-80. She alleged that her supervisors repeatedly subjected her and other female lifeguards to uninvited and offensive touching, lewd remarks, and discussion of women in offensive terms. According to Faragher, one of the supervisors said that he would never promote a woman to the rank of lieutenant, and another allegedly warned Faragher: "Date me or clean the toilets for a year." Id. at 2280. One of the supervisors put his arm around Faragher with his hand on her buttock, "made contact with another female lifeguard in a motion of sexual simulation," made demeaning references to women and commented disparagingly on Faragher’s shape. Id. at 2281.

The employer adopted a sexual harassment policy in February 1986. That policy was contained in a memorandum from the City Manager addressed to all employees, and it was revised and reissued in 1990. Unfortunately, however, the employer Acompletely failed to disseminate its policy among employees’ of the Marine Safety Section. The supervisors in that section and many of the lifeguards, including Faragher, were not aware of the policy. Id. at 2280-81.

The Supreme Court held that the employer was liable for the sexual harassment by Faragher’s supervisors. Faragher was not subjected to any tangible job action, but the Court said that the employer could not even try to establish the affirmative defense. Id. at 2293. Although the employer had a sexual harassment policy, it failed to distribute that policy to Faragher, her co-workers, or her supervisors. The Court found that this omission precluded the employer from arguing that it took reasonable steps to prevent the harassment from occurring. In addition, the Court noted that the policy was per se ineffective because it "did not include any assurance that the harassing supervisors could be bypassed in registering complaints." Id. at 2293. As a result, the employer was strictly liable for the harassment. Id. at 2293-94.

Application and Interpretation

The Ellerth/Faragher standard is still evolving, but many courts have already started defining the parameters of the Supreme Court’s holding. This section will examine how the standard applies to each step of the harassment analysis.

A. Step One Of The Analysis: Defining Actionable Conduct

Courts have emphasized that, notwithstanding the new Ellerth/Faragher standard, employees must still satisfy the threshold requirement of demonstrating that they were subjected to actionable conduct. "Actionable conduct" may take the form of fulfilled threats or other detrimental actions resulting from a refusal to submit to a supervisor’s sexual advances or requests. See, e.g., Newton v. Cadwell Labs., 156 F.3d 880, 883 (8th Cir. 1998).

Employees may also establish actionable conduct by showing that their work environment was both objectively and subjectively hostile. See Rorie v. United Parcel Serv., Inc., 151 F.3d 757, 761 (8th Cir. 1998) (plaintiff "must show both that the offending conduct created an objectively hostile environment and that she subjectively perceived her working conditions as abusive"). As one court has commented:

Contrary to the children’s rhyme, all insults, like sticks and stones, can hurt, but this does not mean that all insults are tortious.

Butler, 161 F.3d at 270. See also Lewis v. Simmons Airlines, Inc., 16 F. Supp. 2d 978, 982 (C.D. Ill. 1998) (‘the concept of sexual harassment . . . is not designed to purge the workplace of vulgarity").

To be actionable, conduct "must be sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive working environment." Vinson, 477 U.S. at 67. As the Supreme Court recently explained:

Title VII does not prohibit "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." Oncale, 523 U.S., at __, 118 S. Ct. at 1003. A recurring point in these opinions is that "simple teasing," id., at __, 118 S. Ct. at 1003, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment."

Faragher, 118 S. Ct. at 2283. According to the Court, Title VII is not meant to be a "general civility code." Id. at 2283-84.

In Adusumilli v. City of Chicago, 164 F.3d 353 (7th Cir. 1998), the plaintiff alleged that: her supervisor told her she should break her banana in the middle rather than eat it whole; a colleague told her to wash a banana before she ate it and asked her what putting a rubber band on top of another meant; a colleague told her not to wave at squad cars in front of the police station because people would think she was a prostitute; male colleagues stared at her and her breasts and tried to make eye contact with her; a colleague poked her fingers; a colleague touched her arm; and a colleague touched her behind. Id. at 357-358.

The court held that these incidents could not support a sexual harassment claim. The Court found that the alleged incidents were not frequent or severe enough to constitute a hostile or abusive work environment. Id at 361-362.

Similarly, in Robinson v. Truman College, 1998 WL 33887 (N.D. Ill. January 19, 1999)(Marovich, J.), the plaintiff alleged that her supervisor made inappropriate remarks to her and inappropriately touched her. For example, she claimed that he referred to her as "honey," "sweetie," or "baby." He allegedly touched her behind on two separate occasions. Id. at *2. He also allegedly said to her, "I can’t believe we haven’t slept together yet" and "If I wasn’t married, I’d marry you." Id. In addition, the plaintiff claimed that her supervisor made frequent calls to her and spoke to her in a "romantic tone of voice." Id.

The court granted summary judgment to the employer, holding that the plaintiff failed to describe an objectively hostile work atmosphere. Id at *5. While the plaintiff "may have found her employment environment to be unprofessional and inappropriate, it was not hostile under this Circuit’s interpretation of Title VII." Id.

Several post-Ellerth and Faragher cases have followed similar reasoning in granting summary judgment to employers. These courts have emphasized the Supreme Court’s pronouncement that Title VII is not meant to be a "general civility code." See, e.g., Sanders v. Women’s Treatment Ctr., 9 F. Supp. 2d 929, 942 (N.D. Ill. 1998) (Castillo, J.) (the employee had no claim for religious harassment where her supervisors reprimanded her for some "trivial" offenses and forced her to participate in a new employee orientation); Fiscus v. Triumph Group Operations, Inc., 24 F. Supp. 2d 1229, 1240 (D. Kan. 1998) (granting summary judgment to the employer where alleged harassment was not physically threatening and "the possible humiliating incidents were few and far between"); Caro v. City of Dallas, 17 F. Supp. 2d 618 (N.D. Tex. 1998) (granting summary judgment to the employer where the supervisor was gruff and abrasive towards the plaintiff but the comments were not based on sex and, even if they were, the behavior did not alter the conditions of the plaintiff’s employment). But see Cichon v. Roto-Rooter Service Co., No. 97 C 3594, 1998 WL 851501 (N.D. Ill. Dec. 3, 1998)(Marovich, J.) (material issue of fact existed as to whether the conduct alleged was actionable where the plaintiff claimed that she was asked questions about her sexual activities and her undergarments, was asked to participate in sexual activities, and was touched on the arm and behind); Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1159 (8th Cir. 1999) (material issue of fact existed as to whether the conduct alleged was actionable where the plaintiff asserted that her supervisor fondled his genitals in front of her and used lewd and sexually inappropriate language).

B. Step Two Of The Analysis: Determining Whether The Alleged Harasser Is A Co-Worker Or A Supervisor

1. Co-Worker Sexual Harassment

The Ellerth/Faragher standard applies only in cases involving sexual harassment by a supervisor. Most courts thus far have declined to extend the standard to cases involving co-worker harassment. In Nelson v. Foster Wheeler Constructors, Inc., No. 97 C 4658, 1998 WL 792474 (N.D. Ill. Nov. 9, 1998) (Coar, J.), for example, the plaintiff alleged that he was harassed by his co-workers on account of his race. In denying the employer’s motion for summary judgment, the court applied the "knew or should have known" standard. The court rejected the employer’s reliance on Ellerth and Faragher, explaining that those cases addressed only sexual harassment committed by a supervisor. Id. at *5 n.4. See also Barbour v. United Beechcraft, Inc., No. 96 C 50251, 1998 WL 803417, at *7 n.9 (N.D. Ill. Nov. 10, 1998) (Reinhard, J.) (declining to apply the Ellerth/Faragher standard to a case involving racial harassment by co-workers); Ward v. West, No. 97 C 8024, 1998 WL 778053, at *3 n.3 (N.D. Ill. Nov. 3, 1998) (Marovich, J.) (holding that the Ellerth/Faragher standard was inapplicable to co-worker sexual harassment); Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998) (applying a negligence standard in a co-worker sexual harassment case); Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998) (applying the "knew or should have known" standard to co-worker sexual harassment); Grozdanich v. Leisure Hills Health Ctr., 25 F. Supp. 2d 953, 970 (D. Minn. 1998) (stating that co-employee sexual harassment is Apresumably@ analyzed under the "knew or should have known" standard); Whitmore v. O=Connor Mgt., Inc., 156 F.3d 796 (8th Cir. 1998).

2. Supervisor Sexual Harassment

The Supreme Court’s decisions in Ellerth and Faragher set forth the test for determining when an employer is liable for sexual harassment committed by its supervisors.

a. Theories of Liability

In Ellerth and Faragher, the Supreme Court described six situations that may result in an employer’s being held liable for sexual harassment committed by a supervisor. An employer may be directly liable:

(1) where "the employer acts with tortious intent"; or

(2) where the employer is itself negligent with respect to sexual harassment in that "it knew or should have known about the conduct and failed to stop it."

Ellerth, 118 S. Ct. at 2267. In addition, an employer may be vicariously liable:

(1) where the supervisor "engages in unlawful discrimination with the purpose, mistaken or otherwise, to serve the employer";

(2) where "the agent’s high rank in the company makes him or her the employer=s alter ego";

(3) where "there is a false impression that the [harassing employee] was a supervisor, when he in fact was not," and "the victim’s mistaken conclusion" that he was a supervisor was reasonable; or

(4) where a supervisor has misused his or her delegated authority in perpetrating the harassment.

Ellerth, 118 S. Ct. at 2266-68. See also Harrison v. Eddy Potash, Inc., 158 F.3d 1371, 1374-75 (10th Cir. 1998).

The Supreme Court focused on the last form of vicarious liability — misuse of delegated authority. The majority of lower courts have similarly focused on this theory, but a few have also analyzed liability under the alter-ego and the apparent authority theories. See, e.g., Harrison, 158 F.3d at 1375-76 (a low-level supervisor could not be considered an "alter ego" of the company merely because he exercised a high degree of control over the plaintiff; apparent authority theory is only viable where the employee reasonably, though erroneously, concludes that a non-supervisor is a supervisor).

b. Definition of "Supervisor"

Before a court may apply the Ellerth/Faragher standard, it must first determine that the harassment was perpetrated by a "supervisor." According to the Supreme Court, only a supervisor can inflict a "tangible employment action." such as docking an employee’s pay or demoting him. See infra pp. 11-12. As the Supreme Court noted:

Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act.

Ellerth, 118 S. Ct. at 2269. Co-workers do not have a similar ability to inflict this type of injury. Despite the importance of this concept, the Court did not define what constitutes a "supervisor" other than stating that a supervisor has "immediate (or successively higher) authority over the employee." Id. at 2270. As one court recently noted, "[i]t is not always clear when a co-worker becomes a supervisor." Corcoran v. Shoney=s Colonial, Inc., 24 F. Supp. 2d 601, 605 (W.D. Va. 1998).

Fortunately, the Seventh Circuit has provided guidance on what constitutes a supervisor. In Parkins v. Civil Constructors of Illinois, 163 F.3d 1027 (7th Cir. 1998), the plaintiff, a dump truck driver, claimed that two of her harassers were supervisors because they periodically functioned as supervisors when she was present on job sites. Id. at 1032-1033. The company argued that they were low-level supervisors with little or no supervisory authority. Id. at 1033.

The court stated:

It is manifest that the essence of supervisory status is 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. Absent an entrustment of at least some of this authority, an employee does not qualify as a supervisor for purposes of importing liability to the employer. Id. at 1034.

Applying this standard, the court held that the two alleged harassers were not supervisors for Title VII liability purposes. The Court relied on the following facts: both were laborers who received overtime; both were members of unions; they sometimes did not act as supervisors; they could not decide what work was to be done at a site, how many employees to assign to a site or who to assign to a site; they had no authority to hire, fire, promote, demote or discipline employees; they had to account for their time; and one worked only 6 or 7 months out of the year). Id at 1034-1035. See also Cichon v. Roto-Rooter Service Co., No. 97 C 3594, 1998 WL 851501 (N.D. Ill. Dec. 3, 1998)(Marovich, J.) (alleged harasser was not a "supervisor" where he had no "employment decision-making authority involving, for example, the ability to hire, fire, discipline or promote. Employee’s perception that the harasser had influence over employment decisions because he was close with management was not sufficient to alter this conclusion). But see Quiroz v. Ganna Construction, 1999 WL 59836 at *20 (N.D. Ill. January 27, 1999) (material issue of fact existed as to whether employee had supervisory authority where the plaintiff presented evidence that the employee had the ability to control certain aspects of the working conditions of lower level employees).

In Grozdanich v. Leisure Hills Health Ctr., 25 F. Supp. 2d 953 (D. Minn. 1998), the court stated that a "supervisor" need not have plenary authority to render hiring and promotion decisions. According to the court:

[I]t is evident that the Supreme Court views the term "supervisor" as more expansive than as merely including those employees whose opinions are dispositive on hiring, firing, and promotion.

Id. at 972. In support of this theory, the court noted that neither of the "supervisors" in Faragher had ultimate authority over the plaintiff’s job. One of the supervisors had authority to hire and fire lifeguards, but his decisions were subject to the approval of higher management. The other supervisor had no such authority at all, and merely assigned daily tasks and supervised work and fitness training. Id. at 972 (citing Faragher, 118 S. Ct. at 2279-80).

In another case, a district court in New York applied the Ellerth/Faragher standard to sexual harassment committed by the vice-president of human resources even though he was not the plaintiff’s supervisor. According to the court, this analysis was appropriate given the V.P.’s "station" as the person responsible for receiving and investigating sexual harassment claims. Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp. 2d 414 (S.D.N.Y. 1998).

It remains to be seen how other courts will define "supervisory" employees for the purpose of the Ellerth/Faragher test.

c. Step Three Of The Analysis: Determining If There Has Been A Tangible Employment Action

Assuming the employee has met her burden of establishing actionable conduct by a supervisor, the next question is whether she actually suffered a tangible employment action. A "tangible employment action" is:

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.

Ellerth, 118 S. Ct. at 2268. In most cases, a tangible employment action "inflicts direct economic harm," but this is not an absolute requirement. Id. at 2269.

Where sexual harassment results in an employee being terminated, demoted or reassigned to an inferior position, it is fairly easy to conclude that the employee has suffered a tangible employment action. See Booker v. Budget Rent-A-Car Sys., 17 F. Supp. 2d 735, 747 (M.D. Tenn. 1998) (finding a tangible employment action where the employee was demoted by his harasser).

However, there are instances where it is not as easy to determine whether there has been a tangible employment action. Courts have begun to address employment actions that were not explicitly discussed in the Ellerth and Faragher decisions. For example, one court has held that a constructive discharge constitutes a tangible employment action, but only if the employer had notice of the harassment and a chance to remedy the situation before the employee quit. Jones v. USA Petroleum, 20 F. Supp. 2d 1379 (S.D. Ga. 1998). See also Fiscus v. Triumph Group Operations, Inc., 24 F. Supp. 2d 1229, 1240 (D. Kan. 1998) (suggesting that constructive discharge, if proven, may be a tangible employment action).

On the other hand, another court has stated that voluntarily transferring to a lower-paying position in order to escape an alleged harasser may not be enough to establish a tangible employment action when the employee is claiming retribution for refusing to submit to a supervisor’s sexual advances. A district court in Kentucky found no "authority or logic which supports such a concept that a self-imposed job detriment should support strict liability." Sconce v. Tandy Corp., 9 F. Supp. 2d 773, 776 (W.D. Ky. 1998). See also Duran v. Flagstar Corp., 17 F. Supp. 2d 1195, 1202 (D. Colo. 1998) ("[w]here, as here, [the plaintiff’s] transfer occurred at her request rather than [the employer’s], the transfer does not constitute an "undesirable reassignment."’).

According to the Fourth Circuit, receiving extra work assignments, without more, does not constitute a tangible employment action.

While Reinhold alleges that she was assigned extra work and suffered other harm as a result of her rejection of Martin’s sexual advances, she does not allege that she experienced a change in her employment status akin to a demotion or a reassignment entailing significantly different job responsibilities.

Reinhold v. Commonwealth of Virginia, 151 F.3d 172, 175 (4th Cir. 1998). See also Watts v. The Kroger Company, 170 F.3d 505, 510 (5th Cir. 1999) (holding that there was no tangible employment action where the plaintiff’s work schedule was changed, her duties were expanded, and she was required to check in with her supervisor before taking breaks); Robinson v. Truman College, 1999 WL 33887 at *6 (N.D. Ill. Jan. 19, 1999) (holding that there was no tangible employment action where her supervisor "stopped advising her," stopped reassuring her about her job duties, and stopped reassuring and protecting her about the personalized challenges that he had previously explained to her were simply part of the job). But see Durham Life Insurance Co., v. Evans, 166 F.3d 139, 153 (3d Cir. 1999) ("if an employer’s act substantially decreases an employee’s earning potential and causes significant disruption in his or her working conditions, a tangible adverse employment action may be found.")

An employee who suffers a tangible employment action must also establish that there is a causal link between that adverse employment action and the sexual harassment. Corcoran v. Shone’s Colonial, Inc., 24 F. Supp. 2d 601, 606 (W.D. Va. 1998) ("tangible employment action required to disable the affirmative defense must be taken by the harassing supervisor"); Fierro v. Saks Fifth Ave., 13 F. Supp. 2d 481, 491 (S.D.N.Y. 1998) (finding no tangible employment action where the alleged harasser did not terminate the plaintiff, who was admittedly fired for embezzlement); Speight v. Albano Cleaners, Inc., 21 F. Supp. 2d 560, 564 (E.D. Va. 1998) (finding no tangible employment action where the alleged harasser was not the one who denied the plaintifr’s raise); Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 182 (4th Cir. 1998) ("[t]angible employment actions, if not taken for discriminatory reasons, do not vitiate the affirmative defense").

It is important to remember that mere threats of a tangible job detriment are not sufficient to deprive employers of the affirmative defense. See Ponticelli v. Zurich American Ins. Group, 16 F. Supp. 2d 414, 430 (S.D.N.Y. 1998) (holding that there was no tangible employment action where the employee was threatened with a poor performance review if she failed to engage in a sexual relationship with her supervisor, employee did refuse to engage in such a relationship, but supervisor did not follow through on his threat). See also Grozdanich v. Leisure Hills Health Ctr., 25 F. Supp. 2d 953, 968 (D. Minn. 1998) (the implied threat of a job detriment was not sufficient to constitute a tangible employment action where the plaintiff did not consider the statements to be verbal threats and did not suffer any actual, tangible job detriment); Speight, 21 F. Supp. 2d at 563 (implied threat did not constitute a tangible employment action where the plaintiff received a promotion despite rejecting her supervisor’s advances).

D. Step Four Of The Analysis: Applying The Affirmative Defense

In Ellerth and Faragher, the Supreme Court explained that Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms. Faragher, 118 S. Ct. at 2292. Accordingly, in cases where an employee has not suffered a tangible employment action, employers may assert an affirmative defense to liability. As noted earlier, this affirmative defense consists of two elements: (1) the employer must demonstrate that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the employer must demonstrate that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Ellerth, 118 S. Ct. at 2270.

1. Preventive and Corrective Measures

To successfully assert the Ellerth/Faragher affirmative defense, an employer must prove that it took reasonable care both to prevent and to correct harassment in the workplace. Ellerth, 118 S. Ct. at 2270. Although the Supreme Court provided some guidance as to what constitutes "reasonable care," it remains to be seen how this will play out in the courts.

a. Reasonable Care To Prevent Harassment

According to the Supreme Court, an employer may satisfy the "prevention" prong of the affirmative defense by having an effective sexual harassment policy.

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 a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.

Ellerth, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2293.

To be effective, a sexual harassment policy must be known by and distributed to the employees. Faragher, 118 S. Ct. at 2293 (indicating that no affirmative defense was available where employer "entirely failed to disseminate its policy against sexual harassment among the [relevant] employee"). In Nuri v. PRC, Inc., 13 F. Supp. 2d 1296, 1305-08 (M.D. Ala. 1998), for example, the employer had a comprehensive, vigorously enforced sexual harassment policy, but "it was not well-known, and in fact, not known at all" to the relevant employees. Id. at 1307-08. The court denied summary judgment, holding that the employer had not established its affirmative defense. Id. at 1308.

In addition, the policy must include a mechanism by which the employee may bypass the harassing supervisor when lodging a complaint. Faragher, 118 S. Ct. at 2293 (no affirmative defense was available where employer’s policy "did not include any assurance that the harassing supervisors could be bypassed in registering complaints").

Employers must also ensure that the individuals designated to receive complaints are properly trained to respond to allegations of sexual harassment.

When an organization designates a particular person or persons to receive harassment complaints, it sends a clear signal that those persons have the authority to accept notice of harassment problems.

Williamson v. City of Houston, 148 F.3d 462, 466 (5th Cir. 1998).

Although it is crucial for an employer to have an effective sexual harassment policy, at least one court has indicated that it is not necessary for an employer to supplement this policy with additional prevention programs. Jones v. USA Petroleum Corp., 20 F. Supp. 2d 1379, 1386 (S.D. Ga. 1998) ("[w]hether an employer wishes to go further by investing in preemptive "sensitivity training," or whatever may be politically fashionable at the time, is something for the employer—not a federal judge—to decide").

Several courts have denied summary judgment because the employer did not present sufficient evidence of its preventive measures. See, e.g., Alviero v. Sam"s Warehouse Club, 9 F. Supp. 2d 955, 961 (N.D. Ill. 1998) (Alesia, J.) (denying summary judgment where the record did not indicate whether the employer took steps to prevent sexually harassment behavior); Reinhold v. Commonwealth of Virginia, 151 F.3d 172, 176 (4th Cir. 1998) (reversing a judgment in favor of the employer where there was little evidence of the existence or potential effectiveness of a sexual harassment policy). Presumably, evidentiary deficiencies of this kind will occur less frequently now that employers are aware of this new affirmative defense.

Other courts have had no problem determining whether an employer exercised reasonable care to prevent harassment. See Kendrick v. Country Club Hills Bd. of Educ. No. 160, No. 96 C 7386, 1998 WL 440891 (N.D. Ill. July 27, 1998) (Guzman, J.) (stating, in dicta, that the employer exercised reasonable care to prevent harassment because it had a sexual harassment policy in place that was distributed to all employees); Speight, 20 F. Supp. 2d 1379 (E.D. Va. 1998) (granting summary judgment to an employer that had a clearly established sexual harassment policy that was known by the plaintiff); Duran v. Flagstar Corp., 17 F. Supp. 2d 1195, 1203 (D. Colo. 1998) (holding that the first prong of the affirmative defense was satisfied where the employee received and understood the employer’s sexual harassment policy, which "permits reporting through a broad range of channels" and provides that the employer "will investigate and take appropriate preventive and/or corrective action").

Employers should be aware that simply having a policy in place, even if effective and distributed, may not satisfy this prong of the affirmative defense if the employer "knew or should have known" about the harassment. In Fall v. University of Indiana, 12 F. Supp. 2d 870 (N.D. Ind. 1998), the employer had a sexual harassment policy in place, which the employee used to lodge a complaint. The employer launched an investigation based on the complaint, which resulted in the harasser resigning his position. Id. at 881.

Although the employer had an effective policy, the court denied summary judgment because the employer failed to demonstrate that it took reasonable care to prevent the harassment. According to the court, the employer arguably had actual knowledge that the employee was experiencing harassment because (1) the supervisor had a history of inappropriate sexual behavior towards female employees, and (2) when the employee reported the problem, one person responded by saying "it wasn’t the first time," and another said "Oh no, not again." Id. at 882.

The court also concluded that, at a minimum, the employer arguably had constructive knowledge of the harasser’s history, which led to

an inference that [his] sexual harassment of women was so pervasive and well-known . . . that the [employer], in the exercise of reasonable care, should have discovered it.

Id. at 883. See also Lancaster v. Sheffler Enterprises, 19 F. Supp. 2d 1000, 1003 (W.D. Mo. 1998) ("[s]imply forcing all new employees to sign a policy does not constitute "reasonable care" The employer must take reasonable steps in preventing, correcting and enforcing the policy").

b. Reasonable Care to Correct Promptly Any Harassment

Even if an employer has an adequate sexual harassment policy, it must still demonstrate that it promptly corrected any sexually harassing behavior. Ellerth, 118 S. Ct. at 2270. In Cadena v. Pacesetter Corp., 18 F. Supp. 2d 1220 (D. Kan. 1998), the employer had an extensive sexual harassment policy, and the plaintiff complained about her supervisor’s harassing behavior. However, the plaintiff produced evidence that despite the employer’s actual knowledge that she was being sexually harassed, it (1) "utterly failed to respond to the first incident of harassment which she reported," and (2) responded to her second complaint in an untimely fashion by waiting approximately two weeks to begin an investigation. Id. at 1230-31. In denying the employer’s motion for summary judgment, the court explained that the "evidence suggests that defendant should have implemented other corrective measures." Id. at 1231. But see Scrivner v. Socorro Independent School District, 169 F.3d 969, 972 (5th Cir. 1999) (the defendant’s prompt and vigorous response to sexual harassment complaints demonstrated that the defendant took reasonable corrective measures.)

At least one court has found that an employer established the affirmative defense where it promptly corrected sexually harassing behavior, without regard to whether the employer had a policy in place to prevent harassment, or whether the employee unreasonably failed to utilize that policy. In Johnson v. Brown, No. 94 C 6530, 1998 WL 483521 (N.D. Ill. Aug. 10, 1998) (Manning, J.), the plaintiff alleged that her supervisor sexually harassed her by exposing himself to her, giving her inappropriate and offensive greeting cards, and touching her in a sexual manner on several occasions. Id. at *1-2.

The court held that although the plaintiff was subjected to a hostile work environment, the employer "took reasonable and adequate measures under the circumstances to prevent continued harassment." Id. at *4. Once the plaintiff informed the authorities about the harassment, they took immediate action by conducting an investigation and prohibiting further contact between the plaintiff and the harasser. Id. at *5. The court did not mention whether the employer had a sexual harassment policy, or discuss the employer’s efforts to prevent harassment in the first place.

Nevertheless, most courts would not agree that prompt correction alone will satisfy the first prong of the affirmative defense. The Fall decision, discussed supra, suggests that an employer that promptly and effectively corrects sexual harassment may still be liable for failing to prevent the harassment in the first place. Fall, 12 F. Supp. 2d at 881-83

2. Employer’s Duty To Avoid Harassment

If an employer makes it past the first prong of the affirmative defense, it must then establish that the employee failed to use the employer’s complaint process or to otherwise avoid harm.

[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.

Ellerth, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2293. As the Eleventh Circuit recently explained:

When an employer has taken steps, such as promulgating a considered sexual harassment policy, to prevent sexual harassment in the workplace, an employee must provide adequate notice that the employer’s directives have been breached so that the employer has the opportunity to correct the problem.

Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1366 (11th Cir. 1999).

In Grozdanich v. Leisure Hills Health Ctr., 25 F. Supp. 2d 953, 1998 WL 765654 (D. Minn. 1998), the court assumed that the employer met the first prong of the affirmative defense by (1) promulgating a harassment policy; (2) screening the alleged harasser’s past employment history; and (3) implementing remedial measures. However, the court denied the employer’s motion for summary judgment because the plaintiff reasonably took advantage of the employer’s corrective procedures. Id. at 974. Although the plaintiff waited until she was assaulted three times, the conduct all occurred on the same day within a matter of hours.

Reasonableness, in discharging a duty of care, is a question for the factfinder and, given the totality of the circumstances presented, the Record does not establish that the Plaintiff’s two hour delay in reporting [the alleged harasser’s] sexually harassing conduct was unreasonable as a matter of law.

Id. The court noted, however, that the delay "could well be relevant . . . to both the affirmative defense issue, as well as the affirmative defense of damage mitigation." Id. See also Watts, 170 F.3d at 511 (the plaintiff took reasonable care to avoid harm where she filed a union grievance complaining about harassment although she did not lodge a complaint pursuant to the company’s sexual harassment policy). But see Speight, 20 F. Supp. 2d at 564 (granting summary judgment to the employer where the "p]laintiff failed to take advantage of the corrective opportunities provided by the [employer’s] policy"); Duran, 17 F. Supp. 2d at 1203 (holding that the employer satisfied the second prong of the affirmative defense where records indicated that the employee never complained about the alleged harassment and, even if she did, it was not until she voluntarily transferred to a different restaurant).

In Robinson, 1999 WL 33887 at *7, the plaintiff waited until three months after she was terminated to make a complaint of harassment. The plaintiff claimed that she did not receive a copy of the defendant’s sexual harassment policy. Id. In addition, she claimed that she was scared to come forward with her complaint of sexual harassment. Id. The court, nevertheless, held that the plaintiff reasonably failed to take advantage of any preventive or corrective measures. Id. The court noted:

As for Robinson’s assertions that she was in fear for her job, she is unable to provide any objective evidence to substantiate this fear. There is no evidence that Robinson was ever threatened nor is there evidence that Robinson was aware of other employees who had come forward with harassment complaints and had been terminated.

Id.

To satisfy her duty to avoid harm, an employee must both promptly notify the employer about the harassment, and fairly engage in the complaint process. In Marsicano v. American Society of Safety Engineers, No. 97 C 7819, 1998 WL 603128 (N.D. Ill. Sept. 4, 1998) (Hart, J.), the employee, Marsicano, alleged that her supervisor, Hatter, sexually harassed her from the moment she started work. Marsicano informed the human resources manager about the alleged harassment, but she then refused to return to work, even to discuss her complaint. The company’s executive director offered to reassign Marsicano, but Marsicano demanded that Hatter be fired. She refused to try working in a new assignment or to discuss alternate solutions.

The court granted the employer’s motion for summary judgment, in large part because Marsicano unreasonably refused to test the sufficiency of the remedial actions taken by the employer. Id. at *7-8.

Marsicano points out that her reassignment would not shield her from all contact with Hatter since certain of the projects on which she worked would come under his direction. Implicit in this argument is the assumption that firing Hatter would constitute the only adequate corrective response. However, . . . there are insufficient grounds for believing that Hatter’s conduct warranted his immediate termination. Moreover, Marsicano’s initial demand for Hatter’s termination was unreasonable given the fact that ASSE had not yet had an opportunity to investigate her complaint. Clearly, instigating disciplinary action in advance of an investigation would have been inappropriate. . . Marsicano has made no meaningful attempt to counter ASSE’s claim that the reassignment offered was the best available accommodation.

Id. at *7. See also Montero v. AGCO Corp., 19 F. Supp. 2d 1143 (E.D. Cal. 1998) (affirming summary judgment in favor of the employer because it was unreasonable for the employee to wait nearly two years to complain about the harassment).

E. Application To Non-Sexual Harassment Cases

In Faragher, the Supreme Court observed:

Courts of Appeals in sexual harassment cases have properly drawn on standards developed in cases involving racial harassment. . . . Although racial and sexual harassment will often take different forms, and standards may 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.

In his dissent to the Ellerth decision, Justice Thomas expressed the opinion that sexual harassment claims should be treated the same as other forms of harassment and decided under a negligence standard. According to Justice Thomas:

Popular misconceptions notwithstanding, sexual harassment is not a freestanding federal tort, but a form of employment discrimination. As such, it should be treated no differently (and certainly no better) than the other forms of harassment that are illegal under Title VII. I would restore parallel treatment of employer liability for racial and sexual harassment and hold an employer liable for a hostile work environment only if the employer is truly at fault.

118 S. Ct. at 2275.

Several courts have applied the new Ellerth/Faragher test to other forms of harassment, which arguably "restore[s] parallel treatment" to all forms of workplace harassment. See, e.g., Sanders v. Women=s Treatment Ctr., 9 F. Supp. 2d 929 (N.D. Ill. 1998) (Castillo, J.) (religious harassment by supervisor); Fierro v. Saks Fifth Ave., 13 F. Supp. 2d 481 (S.D.N.Y. 1998) (racial harassment by supervisor); Booker v. Budget Rent-A-Car Sys., 17 F. Supp. 2d 735 (M.D. Tenn. 1998) (racial harassment by supervisor); Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1270 (10th Cir. 1998) (racial harassment by supervisor).

In one interesting case, a district court in Illinois recognized that an employee may have a claim for harassment on the basis of a disability under the Americans with Disabilities Act (AADA@). In Erjavac v. Holy Family Health Plus, 13 F. Supp. 2d 737 (N.D. Ill. 1998) (Castillo, J.), the plaintiff, an insulin-dependent diabetic, was "disabled" within the meaning of the ADA. Id. at 748. She alleged that she was subjected to a hostile work environment because her supervisor (1) expressed dismay when she revealed her diabetes; (2) treated her harshly, constantly berating her with obscene and demeaning language; and (3) after discovering that she had diabetes, began assigning her work just before lunchtime. Id. at 752.

The court did not apply the Ellerth/Faragher test because it found that this conduct was not severe or pervasive enough to be actionable. Id. at 751-52. See also Wallin v. Minnesota Dep’t of Corrections, 153 F.3d 681, 687-88 (8th Cir. 1998) (assuming without deciding that the plaintiff could state a cause of action for a hostile work environment under the ADA, but holding that the co-workers’ alleged conduct was not sufficiently severe or pervasive to affect the terms or conditions of the plaintiff’s employment). Those cases leave open the possibility that courts may apply the new Title VII standard of employer liability for supervisor sexual harassment to cases brought under the ADA.

Conclusion

As the Fifth Circuit has noted, "we are witness to the birth of a second generation of sexual harassment law" heralded by the Supreme Court’s decisions in 1998. Butler, 161 F.3d at 267, (5th Cir. 1998). These decisions dramatically changed the standard for determining when an employer may be held liable for a supervisor’s sexual harassment.

As lower courts have begun to interpret the Supreme Court’s rulings, the law of sexual harassment continues to evolve. In the years to come, lawyers should expect to see the courts grapple with issues like these:

when an employee is a "supervisor" for Title VII purposes

what constitutes a "tangible employment action"

what it means to take reasonable care to "prevent" and "correct promptly" sexually harassing behavior when an employee has unreasonably failed to take advantage of "preventive or corrective opportunities" or "to avoid harm otherwise"

It remains to be seen how these issues will be resolved. It is clear, though, that sexual harassment law promises to be an interesting and provocative field in the years to come.

Camille N. Khodadad is a Principal of Lord, Bissell & Brook, Chicago. Her practice is concentrated in Labor and Employment Law and Litigation. She received her Undergraduate Degree in 1987 from Northwestern University and her Law Degree in 1991 from Loyola University. She may be reached at ckhodadad@lordbissell.com.


 
 
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