Harrasment II

In previous panel, we discussed the circumstances under which an employer may be liable for the acts of an employee. We pointed out that ordinarily, an employer is liable for the negligent acts of an employee under the principle of vicarious liability.

An employer's liability for violation of discrimination laws follows a somewhat different course, however, because discrimination laws focus primarily upon the duty of the employee directly to the employee. For this reason, in most cases, it is the employee who answers for the actions of the company or its employees. But the federal courts have carved out a defense in connection with sexual harassment claims when the employer has taken reasonable preventive steps.

The EEOC has issued guidelines on employer responsibility. They are found at 29 Code of Federal Regulations 1604.01. Those regulations begin by telling us that in determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis. Then the regulations say that an employer is

...responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence.

Where the harassment results from lower level co-employees, the employer is held to a lesser standard under EEOC guidelines:

With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.

(e) An employer may also be responsible for the acts of non- employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.
(f) Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under title VII, and developing methods to sensitize all concerned.
(g) Other related practices: Where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.

The circumstances under which employer may be responsible for supervisor harassment has been considered as well by the Supremen Court. The beginning point for study of those cases is found in MERITOR SAVINGS BANK v. VINSON, 477 U.S. 57 (1986), where a former bank employee brought an action against the bank and her supervisor at the bank, claiming that during her employment at the bank she had been subjected to sexual harassment by the supervisor in violation of Title VII of the Civil Rights Act of 1964. The District Court denied relief holding that if respondent and the supervisor did have a sexual relationship, it was voluntary and had nothing to do with her continued employment at the bank, and that therefore respondent was not the victim of sexual harassment. The court then went on to hold that since the bank was without notice, it could not be held liable for the supervisor's alleged sexual harassment. The Supreme Court on review noted that, without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor "discriminate[s]" on the basis of sex.

The Bank, however, argued that in prohibiting discrimination with respect to "compensation, terms, conditions, or privileges" of employment, Congress was concerned with what petitioner describes as "tangible loss" of "an economic character," not "purely psychological aspects of the workplace environment." The Court rejected this position:

We reject petitioner's view. ...., the language of Title VII is not limited to "economic" or "tangible" discrimination. The phrase "terms, conditions, or privileges of employment" evinces a congressional intent "`to strike at the entire spectrum of disparate treatment of men and women'" in employment....Since the [EEOC} Guidelines were issued, courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.

For sexual harassment to be actionable, the Court held, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment."

The Court likewise rejected the District Court's view that a claim for sexual harassment would not lie unless sexual relations were involuntary. Rather, the issue is whether the advances were unwelcome:

But the fact that sex-related conduct was "voluntary," in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were "unwelcome." 29 CFR 1604.11(a) (1985). While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the "voluntariness" of respondent's participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.

The Court then considered the arguments of the parties regarding the Bank's liability, but decided that that issue was not ready for ultimate resolution. The Court of Appeals had held that the Bank would be absolutely liable for the conduct of the supervisory employee, simply because he was a supervisor.

As to employer liability, we conclude that the Court of Appeals was wrong to entirely disregard agency principles and impose absolute liability on employers for the acts of their supervisors, regardless of the circumstances of a particular case. It rejected the Court of Appeals.

This left for another day the exact scope of employer derivative liability for sexual harassment.

Then in two 1998 cases, the Court answered some of the questions left open in the Meritor Bank case. In Burlington Industries, Inc. v. Ellerth, the plaintiff alleged that her supervisor sexually harassed her by making sexual advances accompanied by statements such as, "I could make your life very easy or very hard at Burlington." Although she rejected his advances, his threats were never carried out and, in fact, she received a promotion. She had never complained about this conduct to company management, although she knew that the company had a policy against sexual harassment. In Faragher v. City of Boca Raton, the plaintiff was a lifeguard employed by the City of Boca Raton. She complained that two supervisors had created a hostile environment of offensive touching and lewd and offensive comments. The City had adopted a sexual harassment policy but had not distributed it to its lifeguards or established a complaint procedure for them.

The Court used these two cases to establish the following principles:

1. When an employee suffers a tangible employment action as a result of refusing to submit to a supervisor's sexual demands, the employer will be held strictly liable. This liability will be imposed regardless of whether the employer had a sexual harassment policy or whether the employer knew or should have known about the conduct. 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).

2. When there is no tangible employment action, the employer will be held liable for the actions of an employee's supervisor(s) which create a hostile environment unless the employer can show both: (a) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (b) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm.

In the Ellerth case, the Court noted that hisorically, under common law tort and agency theories, sexual harassment had been regarded as outside the scope of employment, and therefore not actionable against the employer, without some further culpability on the part of the employer. But the Court declined to adopt the narrow view that harrassment was outside the scope of employment.

At the outset, we can identify a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the harassment: when a supervisor takes a tangible employment action against the subordinate. Every Federal Court of Appeals to have considered the question has found vicarious liability when a discriminatory act results in a tangible employment action. .... When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation. A tangible employment action in most cases inflicts direct economic harm. As a general proposition, only a supervisor, or other person acting with the authority of the company, can cause this sort of injury.....The 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.

Whether the agency relation aids in commission of supervisor harassment which does not culminate in a tangible employment action is less obvious, the Court continued. The Court articulated the following procedure to address these cases:

we adopt the following holding in this case and in Faragher v. Boca Raton, post , also decided today. 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.

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). 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.

hile 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. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any 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. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.