Replacement 11397 Deliver Within 30 Hrs

Chapter 9: Sexual Harassment

Opening Scenarios

SCENARIO 1

A female employee tells her supervisor that she is disturbed by the workplace display of nude pictures, calendars, and cartoons. He replies that, if she is bothered, she should not look. The employee suspects this is a form of sexual harassment. Do you agree? Why or why not?

SCENARIO 2

An employee routinely compliments colleagues about their appearance, hair, and body. Is this sexual harassment? Why or why not?

SCENARIO 3

A male and female employee have engaged in a two-year consensual personal relationship, which ends. The male continues to attempt to get the female to go out with him on dates. When she does not, she is eventually fired by the male, who is her supervisor. She sues, alleging sexual harassment. Who wins and why?

Statutory Basis

It shall be 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 . . . sex [gender] . . . . [Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000e2(a).]

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. [Source: 29 C.F.R. § 1604.11 (a) (EEOC Sexual Harassment Guidelines).]

Since Eden . . . and Counting

Introduction

Imagine your boss whacking you over the head with his naked penis, then the same day, lifting your shirt and masturbating on you while he held you down, and ejaculating on you. That is precisely what happened in an Aaron’s Rents case in St. Louis. The jury awarded the employee a whopping $95 million against the national rent-to-own chain. It is one of, if not the largest, single sexual harassment awards in history.1 Experience tells us that of all the chapters you will read in this book, this is probably the single most perplexing. Why in the world would someone engage in such an unnecessary act that can have such wide-ranging negative consequences for the employer? Why would an employer permit it? You will page 427probably find yourself asking this over and over as you go through the chapter. You will likely find yourself asking how this could ever be worth it to an employer when it is so purely personal?

No matter what the workplace, whether employees are practicing law, serving customers, hosting a television show, being the president of the United States, running a medical clinic, or being a professor, the fact that it is a workplace means we presume a certain standard for our interaction with co-workers. It may be loosely defined, but we know it is there. Just picture what you think your workplace will be like when you graduate. You worked long and hard to get that diploma; you shlep from one interview to another in a race to obtain a job before graduation; you step out into the workplace feeling a degree of trepidation and uncertainty but knowing that, if given a chance, you’ll be able to work hard and make your dreams come true. You take a job where it is a given that you will have dignity and respect and be allowed to contribute your time and energies to the productivity of your employer. Without even giving it much thought, you may expect there to be some unpleasant personalities and even jerks in your workplace, but you still expect a certain level of decorum.

With this picture in mind, we guarantee that the following situations do not comport with your idea of a workplace you would like to step into. Keep in mind that these incidents are only a few from many, many in the last few years. They are provided in order for you to see the varied ways in which this issue is manifested in the workplace so you will be more likely to recognize it when you see it. These are not easy issues to talk about, and they are not always for the faint of heart. This is especially so sitting in a class with others. But, it is what it is—we are all grown-ups and it is the law and these things happen, so you need to know. As someone who will likely be faced with this issue as a manager, you cannot afford to be shy. Sexual harassment in the workplace happens and more frequently than you would think and one of the main ways the cases go farther than they need to is because of the hesitation managers have in addressing the issue. Backing away from it will not help you learn what you need to in order to prevent liability. These cases are not provided for purposes of sensationalism or titillation. They are far too sad. They are cases that arise in the workplace and cause great consternation and distress not only to the harassee, but also to those who witness it, those who must address it, those who must pay for it, those whose family members must see their loved one suffer, and those who are employed at the workplace and are embarrassed by the negative publicity. The impact on the workplace in terms of embarrassment, loss of time in dealing with the issue, the cost of litigation and judgments or settlements, and loss of productivity is simply not worth it. This is especially so for us, as taxpayers who have to pay out about $1 million a year to sexually harassed staffers of legislators on Capitol Hill.2

•Roger Ailes, 76-year-old chair of Fox News, stepped down in 2016 soon after anchor and reporter Gretchen Carlson accused him of sexual harassment. Reporter Megyn Kelly soon followed with similar allegations. Then others came forward. The company spent millions of dollars settling the suits. It was said that Ailes’s actions had been going on for a very long time and because of the culture at Fox and his position, he was not stopped.3page 428

•Fox News celebrity Bill O’Reilly also settled a case with reporter Juliet Huddy for sexual harassment, with Huddy alleging he repeatedly called her, including while on vacation, gave her a key to his hotel room, tried to kiss her, repeatedly propositioned her, and had “highly inappropriate and sexual” conversations with her, at times sounding like he was masturbating.4

•The director of the Federal Communications Commission’s Office for Communications Business Opportunities allegedly not only had sex with a Washington Post reporter in his office, but management refused to act when a male employee repeatedly invited other male employees to watch pornography with him in the cubicle next to that of a female employee, with a male keeping watch, while the female employee would “hear groans—mmm, mmm, ahh—” in response to their viewing.5

•When a Deutsche Bank employee alleged he experienced sexual harassment by his supervisor, he said top managers pressured him to rescind the claims, which took him months to bring forward for fear of no confidentiality since the bank had a policy not allowing employees to talk critically about someone unless the person was present. Their Principal No. 11: “Never say anything about a person you wouldn’t say to him directly. If you do, you are a slimy weasel.”6

•A Chicago court found for a female employee in a suit against Custom Companies, a trucking company in Northlake, Illinois, when it determined that the founder and top managers in the company engaged in “reprehensible conduct” against three female sales representatives by repeatedly touching; groping; making sexually explicit comments using lewd language; and exposing them to pornography, jokes, sexual advances, and a sexually charged atmosphere, which included making them take clients to strip clubs and other places of adult entertainment. In sharply criticizing the harassers in a 50-page memorandum opinion, among other things, the court enjoined Custom from further engaging in such activity and ordered them to send a letter to their clients notifying them of the court’s decision.7

•A male lawyer sued his ex-firm for trying to bully him into going to an all-male weekend retreat that could involve naked participants passing around a wooden phallus in a circle and describing their sexual experiences, and becoming “extremely hostile” and refusing to pay him because of his refusal.8

•A female employee was awarded $1.7 million after her employer spanked her in front of co-workers in what the employer called a “camaraderie-building exercise” that pitted sales teams against each other, with winners throwing pies at the losers, feeding them baby food, making them wear diapers, and spanking them.9

•Lutheran Medical Center in Brooklyn, New York, agreed to pay nearly $5.5 million to settle a sexual harassment case in which a hospital doctor allegedly subjected more than 50 female employees to invasive touching and intrusive questions about their sex life during mandatory physical exams. He threatened to delay or deny their employment if they did not cooperate.10

•A former Delta Airlines pilot filed suit alleging Delta ignored her complaints about being sexually harassed while in the cockpit then shunned by page 429her fellow pilots refusing to talk to her during flight operations when she reported it.11

•A University of Alabama student sued Best Buy claiming that Geek Squad Technical Support staff members circulated nude photos of her from her computer after taking it in for repairs.12

•Superman, Flashdance, and The Color Purple film producer, Jon Peters, was ordered to pay $3 million to his former assistant after the jury found she was subjected to sexual harassment through, among other things, Peters fondling her and climbing into bed with her in a hotel room. Peters had already been sued by a male co-worker for touching him or touching himself and the year before by a maid who claimed he tried to touch her breasts and push her onto his bed while he was naked.13

•Powerful New York “kingmaker” assemblyman Vito Lopez was censured by the New York Assembly after “alarming” complaints of sexual harassment against women who worked in his office.14

•The dog groomer for a New York socialite sued for sexual harassment after repeatedly being subjected to sexual advances by his employer as he tried to train her dogs.15

•Burger King settled a claim for sexual harassment of seven female employees, six of whom were high school students, after the manager subjected them to repeated groping, vulgar sexual comments, and demands for sex. Nothing was done when this was reported to assistant managers at the restaurant or to the district manager.16

•A New Hampshire judge was convicted of assault on five women who were victim’s advocates of his court after groping them at a conference on sexual assault and domestic violence. Late-night partying at the conference also led to the attorney general’s resignation after an investigation into his inappropriate touching of a woman while dancing.17

•Donald D. Thompson, a federal district court judge, married and the father of three grown children, was disbarred and sentenced to four years in prison after allegations that he habitually masturbated with a penis pump under his robe at trial. The claim was bolstered by semen samples on his robe, chair, and carpet and behind the bench; as well as witnesses such as the court reporter, lawyers who heard the “whooshing” sound made by the pump, and police officers who took photos of the pump under the desk during a break in a murder trial after seeing a piece of plastic tubing disappear under the judge’s robe. It was expected that a number of defendants would appeal, alleging the judge was not paying sufficient attention while presiding over their trials. It was reported, “During one trial, the judge seemed so distracted that some jurors thought he was . . . tying fishing lures behind the bench.”18

We could go on, but we will stop here. You get the message. From The Price Is Right game show host Bob Barker,19 to governor and actor Arnold Schwarzenegger (who, after being dogged by allegations of sexual misconduct with up to 16 women page 430during his campaign for governor of California, underwent a voluntary course in preventing sexual harassment after his election)20; from the founder of Habitat for Humanity, to conservative talk show host Bill O’Reilly (in a different case),21 to a sitting president (Bill Clinton, who was governor at the time the event occurred), no one seems to be immune from engaging in sexual harassment. (See Exhibit 9.1, “Even a Professor. . . .”) Sexual harassment suits are still far more frequent an occurrence than we would like them to be, if for no other reason than they cost the employer totally unnecessary time, effort, energy, bad press, and money for purely personal reasons of the harasser.

Exhibit 9.1 Even a Professor . . .

No doubt you have heard about President Bill Clinton’s sexual encounter with White House intern Monica Lewinsky. This situation involved a student who evidently resembled Ms. Lewinsky and the professor who kept reminding her of that fact in front of other students.

Inbal Hayut, a female student of political science professor Alex Young at the University of New York at New Paltz, sued Professor Young for nicknaming her “Monica” and subjecting her to harassment about it over the course of the semester. Hayut apparently resembled Monica Lewinsky, the White House intern who had an affair with then-President Bill Clinton and was much in the news at the time. Professor Young opened virtually every class session by asking Hayut in front of the entire class, “How was your weekend with Bill?” Hayut alleged that twice in class Professor Young told her, “Be quiet, Monica. I’ll give you a cigar later.” She asked Professor Young to stop referring to her as “Monica” but was ignored. Classmates mockingly addressed Hayut as “Monica” outside class.

Hayut said the comments affected her deeply, humiliated her in front of her classmates, and made it difficult for her to sleep or concentrate at school or work. She barely passed her courses that semester, received failing grades the next term, withdrew from the school, and had to complete a year of remedial work before she could transfer to another school.

Hayut sued the university, the professor, and several school administrators for, among other things, violating the Title IX Educational Amendments of 1972, which prohibit gender discrimination in any education program or activity receiving federal financial assistance. Professor Young, who had been teaching for 30 years, admitted making the statements, but said they were a joke. He retired a month after school administrators met to decide what to do about the situation.

In the lawsuit, the school claimed the actions by Professor Young did not amount to sexual harassment. The court ruled that Professor Young, as “a teacher at a state university, was a state actor vested with considerable authority over his students.” His comments were severe and pervasive enough to transcend the bounds of propriety and decency and became actionable harassment, and Hayut’s academic performance suffered as a result. [Hayut v. SUNY at New Paltz, et al., 352 F.3d 733 (2d Cir. 2003).]

In 1991, the first sexual harassment class action was approved in Jenson v. Eveleth Taconite, Inc.22 Leading up to the class action certification proceedings there was much speculation in the legal community as to whether such a thing could be done, or even if it really needed to be done. How frequently could there possibly be a case with so many charges that a class action suit was necessary? Unfortunately, in the years since, many such cases have been brought, involving both men and women. Few are brought to trial. The risk to the employer is too great. Sexual harassment page 431class action trials (actual trials, not lawsuits filed) have been called “a white buffalo” by one lawyer because so few are seen.23 Many cases are filed, but they are settled rather than litigated as a means of avoiding bad publicity and the possibility of even greater damages if the matter goes to trial. Keep in mind that at trial the jury would hear employee after employee take the witness stand and under oath tell similar stories, generally of a grossly inappropriate-for-the-workplace, graphic sexual nature, often from the employer’s offices all over the country. To think that there would be enough employees experiencing sexual harassment at a workplace to even be certified as a class action (no small feat!) ought to give you cause for concern as a future manager, supervisor, or business owner.

The Eveleth case became the inspiration for the Academy Award–nominated movie North Country, starring Charlize Theron, detailing the very ugly situation the employee faced in trying to do something about the sexual harassment of herself and other female employees. The film was based on the book Class Action by Clara Bingham and Laura Leedy Gansler.24 In addition to the class action suits set forth above, consider these:

•CB Richard Ellis, a $1.6 billion, publicly traded commercial real estate brokerage firm with 17,000 employees in 300 offices around the world, was sued by female employees whose affidavits alleged management condoned and perpetuated discrimination and sexual harassment against women through such things as its decades-old, much-touted, annual “Fight Night” event in Atlanta. This was characterized as a “rowdy, black-tie Vegas-style boys night out of cigar smoke, boxing, and women on display.” Female employees were chosen to wear evening clothes and serve them and their clients drinks and cigars. At work, female employees across the country alleged they were subjected to groping, degrading comments, and vulgar discussions about sex and women’s body parts. Male employees also exposed themselves to female employees. The plaintiffs alleged daily circulation of offensive, lewd, and pornographic emails; granting or withholding permission to interface with customers based on a female employee’s looks; viewing of pornographic websites and videos in the office; and the display of offensive, lewd, and pornographic pictures and calendars in the office. The real estate brokerage firm eventually settled the case for an undetermined amount that included, among other things, $3.4 million in attorney fees and a $400,000 donation to a women’s real estate trade group for scholarships.25

•The EEOC brought a class action suit against Red Lobster in Salisbury, MD, for “egregious sexual harassment” including the culinary manager pressing his groin against them, grabbing and groping them, and making sexually offensive comments such as frequent remarks about the female employees’ bodies and about his genitals.26

•In the EEOC’s longest discrimination suit in the history of its Chicago office, a class action suit on behalf of more than 100 women against International Profit Associates, Inc., was settled with the employer admitting to “an unlawful pattern or practice of tolerating sexual harassment.”27

•page 432A Las Vegas real estate developer subjected a class of women to sexual propositions, touching, and even threats at gunpoint.28

•Merchant Management Systems Resources, Inc., subjected a class of female employees to “egregious” sexual harassment and retaliation if they complained, including sexual comments and touching, up to coerced sexual intercourse.29

•Dial Corporation, maker of Dial soap, entered into a consent decree with the EEOC to settle a class action by 91 women who alleged that the Dial Corporation’s soap factory in Montgomery, Illinois, had a sexually abusive environment for years and management either participated in the activities or did nothing when it was reported. Harassing activity included everything from grabbing female employees and fondling their breasts, to sexual comments and propositions, to placing a sanitary napkin doused with ketchup beside a female employee’s tool box, as well as a life-sized penis carved from pink soap.30

•Thirty-two female employees at the U.S. Mint’s Denver plant, nearly one-third of the females, filed suit alleging they were subjected to sexist comments, treated more favorably if they had sex with some managers, disciplined more harshly than men, discouraged from complaining about the treatment, and ignored after they met with Mint officials. Until they met with higher authorities at the U.S. Treasury Department, the harassment continued. The Mint director was female.31

•You most likely heard about the 2017 episode of the private Facebook group, Marines United, in which thousands of Marines, without permission, posted nude “revenge porn” photos of fellow female Marines and others. The investigation soon spread to the Army and Navy.32 In 2010, nearly 50,000 male veterans screened positive for “military sexual trauma” at the Department of Veterans Affairs, up from just over 30,000 in 2003. The Pentagon began to acknowledge the rampant problem of sexual violence as both males and females came forward in unprecedented numbers. Experts said that male-on-male assault in the military is not motivated by sexual orientation, but by power, intimidation, and domination.33

•The EEOC sued Kraft on behalf of a class of male employees who were subjected to “egregious” same-sex harassment and retaliation by their male supervisor in Birmingham, Alabama. The employees were subjected to sexual comments and propositions, touching, grabbing, and sexual assaults by a male supervisor for Nabisco.34

•The EEOC filed for class action certification in an action against Federal Express Corp. for same-gender sexual harassment in Kankakee, Illinois. One of the employees alleged that he repeatedly complained to management about the harassment by another male employee, but he was told to “act like a man” and that “nothing can be done.”

Can you think of a good reason an employer would watch millions of hard-earned dollars go out of a business’s coffers for such unnecessary, avoidable, and totally useless actions? Impeachment of a president, resignation of multi-starred generals and other high-level military personnel, resignation of company and page 433university presidents and long-term legislators, and embarrassing televised hearings of a U.S. Supreme Court nominee all have been a part of our national consciousness and abrupt introduction to, and education in, the area of sexual harassment. It is frustrating to see the same thing over and over again, while liability is so avoidable if employers will only take a few steps we will discuss.

But before we do that, let’s get a bit of context. Sexual harassment may have been something you are used to realizing existed, but it really is of pretty recent vintage. It seems like such a short time ago that most of us were totally unaware that the legal cause of action of sexual harassment even existed. Though it had been around for more than 10 years, most people knew very little about it. Until, that is, it was thrust into the limelight when then–University of Oklahoma law professor Anita Hill took her seat at a table before the Senate Judiciary Committee in the confirmation hearings for associate justice of the U.S. Supreme Court, Clarence Thomas. Hill had worked for Thomas when he was head of the EEOC about 10 years before. When Thomas came up for confirmation, friends of Hill reported to the Judiciary Committee that she had at one time revealed to them details of unprofessional encounters with Thomas that could have amounted to sexual harassment. The committee contacted Hill and made clear that she would either testify about the matter and set the record straight herself or leave them to their own devices of discovery. Hill very reluctantly chose to testify after being subpoenaed by the Judiciary Committee, and the country hasn’t been the same since. The historic situation is now the basis of the 2016 Emmy-nominated HBO docudrama, Confirmation, and the 2014 documentary, Anita: Speaking Truth to Power, that played to packed Sundance Film Festival audiences.

Hill’s testimony over the next several days, and Thomas’s barely concealed anger about it, were painful for the millions of Americans who sat glued to their television sets during those unbelievable autumn days in 1991. People who had never even heard the term sexual harassment now had implacable opinions about it. From barber shops to executive suites, and everywhere in between, everyone discussed the pros and cons of not only Hill’s and Thomas’s assertions, but also the concept of sexual harassment itself. Men who had thought nothing of what they considered harmless sexually suggestive jokes, comments, gestures, propositions, and even touching suddenly felt themselves looked upon as virtual lechers. Women who had found themselves on the uncomfortable receiving end of such unwanted attentions now discovered that those attentions might be not just uncomfortable, but actually illegal under Title VII. Eight months after the Hill–Thomas hearings, sexual harassment complaints filed with the EEOC increased by more than 50 percent. Ninety percent of the charges were from women. In the elections of 1992, called the “Year of the Woman,” unprecedented numbers of female politicians rode the backlash wave of women who wanted to change “politics as usual” after witnessing what they perceived as the Senate’s poor treatment of Hill during the hearings and Thomas’s confirmation despite Hill’s revelations. Ironically, at the time he engaged in the alleged activity, Thomas was head of the EEOC, the very agency charged with enforcing sexual harassment claims.

page 434Much happened in the wake of the Hill–Thomas fiasco. Almost overnight, the country’s offices and workplaces went from friendly to foul. Sexual harassment captivated the national consciousness, only there was an immediate, acerbic, often acrimonious air to it. Lines were drawn in offices, bars, schools, universities, churches, and homes all across the country, and people took their places on one side or the other and held their ground.

As you can see, sexual harassment law is not something that has been around forever or that we’ve grown accustomed to and learned to live with over hundreds of years or even in the 50+ years since Title VII was born. Even though it may seem like old hat today, it is still pretty new in the legal sense. It is still evolving. The U.S. Supreme Court did not hear its first sexual harassment case until 1986, and the next one did not come until six years later in 1992. And of course, as we saw earlier, despite making it clear that sexual harassment is a type of gender discrimination and a violation of Title VII, as you can see from the recent examples, there are still too many who don’t yet “get it.”

We also told you the background of sexual harassment because there is a lot of baggage that comes with the issue. Often, managers, supervisors, and employees don’t recognize sexual harassment when it occurs. Our society preaches sexual permissiveness on the one hand, through music, movies, television, advertising, acculturation, and so forth, but when it comes to the workplace, the rules are different and some people don’t make the transition very well.

Despite this, is sexual harassment something with which we really should be concerned? Is it that big a deal? Well, let’s take a look. In one of the first and still one of the most comprehensive studies ever conducted on the issue, the U.S. Merit Systems Protection Board in 1980 found that over 40 percent of federal employees had reported incidents of sexual harassment; seven years later, the results were nearly the same (42 percent). A survey by Working Woman magazine of 160 of the Fortune 500 companies showed that nearly 40 percent of the companies had received at least one sexual harassment complaint in the previous 12 months. A New York Times poll found that 4 of every 10 women reported having experienced sexual harassment. The National Law Journal reported that 60 percent of female attorneys nationally said they had experienced some form of sexual harassment. A Parade Magazine poll discovered that 70 percent of the women polled who served in the military said they had been sexually harassed, as had 50 percent of the women who worked in congressional offices on Capitol Hill. Despite the numbers, only about 5 percent of the incidents of sexual harassment were reported. Those who experience sexual harassment “pay all the intangible emotional costs inflicted by anger, humiliation, frustration, withdrawal, [and] dysfunction in family life.”

In Robinson v. Jacksonville Shipyards, Inc.,36 the court found, based on expert testimony, that

victims of sexual harassment suffer stress effects from the harassment. Stress as a result of sexual harassment is recognized as a specific, diagnosable problem by the American Psychiatric Association. Among the stress effects suffered is “work performance stress,” which includes distraction from tasks, dread of work, and page 435an inability to work. Another form is “emotional stress,” which covers a range of responses, including anger, fear of physical safety, anxiety, depression, guilt, humiliation, and embarrassment. Physical stress also results from sexual harassment; it may manifest itself by sleeping problems, headaches, weight changes, and other physical ailments. A study by the Working Women’s Institute found that 96 percent of sexual harassment victims experienced emotional stress, 45 percent suffered work performance stress, and 35 percent were inflicted with physical stress problems.

Sexual harassment has a cumulative, eroding effect on the victim’s well-being. When women feel a need to maintain vigilance against the next incidence of harassment, the stress is increased tremendously. When women feel that their individual complaints will not change the work environment materially, the ensuing sense of despair further compounds the stress.

Regarding tangible costs, according to the classic 1988 MSPB update study, sexual harassment cost the federal government $267 million from May 1985 to May 1987 for losses in productivity, sick leave costs, and employee replacement costs. A Working Woman magazine survey found the actual cost of sexual harassment in the responding companies to be $6.7 million in low productivity, absenteeism, and employee turnover. In addition, along with the nontangible price they pay, the MSPB found that employees who are sexually harassed pay medical expenses, litigation expenses, and job search expenses, and lose valuable sick leave and annual leave. In the 2016 Final EEOC Select Task Force on the Study of Harassment in the Workplace, issued after an 18-month study of the issue by a select committee that included not only lawyers, but also sociologists, psychologists, trainers, and workplace representatives, the EEOC noted that what brought about the call for the study in the first place was the fact that in the 30 years since sexual harassment had been used as a cause of action, the prevalence of the incidences of the activity was still so very high. Despite this, the report found that over 90 percent of employees who experience such harassment fail to report it for, among other things, fear of not being believed or retaliation.37

Whether it occurs through joking, e-mails, touching, gestures, staring, unwanted requests for dates, denials of job opportunities, negative comments based on gender, the display or showing of pornography, or some other means, sexual harassment is not just kidding or a joke or workplace fraternization. It is an illegal form of gender discrimination that violates Title VII of the 1964 Civil Rights Act. But it is not only illegal: Given the toll it takes on the workplace, it is simply not good business. Since it is purely personal on the part of the harasser, it makes little sense for an employer not to take simple steps to prevent this totally unnecessary liability. It has become even less justifiable in the face of the 1991 Civil Rights Act amending Title VII to permit jury trials and compensatory and punitive damages.

The Civil Rights Act was passed in 1964, but it was the mid-to-late 1970s before courts began to seriously recognize sexual harassment as a form of gender discrimination under Title VII. In 1980, soon after the first few significant sexual harassment cases were decided, the EEOC issued guidelines on sexual harassment. The guidelines, quoted in the opening of this chapter, are not law in the sense of Title VII but carry a great deal of weight when it comes to how courts will view and analyze the issue.

Where Do Sexual Harassment Considerations Leave the Employer?

It is important to note that the intent of the law is not that the workplace either become totally devoid of sexuality on the one hand or be given completely over to employees who would misuse the law on the other. Consensual relationships are not forbidden under the law, and employees may date consistent with company policy. It is only when the activity directed toward an employee is unwelcome and imposes terms or conditions different for one gender than another that it becomes a problem. For instance, a female employee might be required as a condition of employment to date her supervisor, while male employees have no such condition imposed. Most workplaces have sexual harassment policies (see Exhibit 9.2, “Example of a Sexual Harassment Policy”) to govern this workplace issue. Recently, California joined Maine and Connecticut and took it a step further and mandated at least two hours of training every other year for supervisors in any U.S. firm with 50 (15 for Maine) or more employees if it has at least one supervisor based in the state. The EEOC recommended that employers not only have such things as policies and training, but also that they go further and take a broader proactive approach that includes workplace civility training.

Exhibit 9.2 Example of a Sexual Harassment Policy

Often the employer doesn’t really know what is appropriate to include in a sexual harassment policy. In the Jacksonville Shipyards case, as part of the court’s order, it required the employer to adopt a sexual harassment policy, which it included in an appendix. In order for you to see what one actually looks like and make the theoretical more practical for you, it is reproduced below, with changes as appropriate to generalize the policy (rather than have it be specific to JSI). It is important to check state laws in your area, as they may vary from the federal. For instance, some state laws mandate postings, some do not, many begin coverage if the employer has only one employee while others track the federal law’s 15, and some specify what must be in any posting that is provided by the employer.

XYZ COMPANY SEXUAL HARASSMENT POLICY

Statement of Policy

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, gender, religion, or national origin. Sexual harassment is included among the prohibitions.

Sexual harassment, according to the federal Equal Employment Opportunity Commission (EEOC), consists of unwelcome sexual advances, requests for sexual favors, or other verbal or physical acts of a sexual or sex-based nature where (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (2) an employment decision is based on an individual’s acceptance or rejection of such conduct; or (3) such conduct interferes with an individual’s work performance or creates an intimidating, hostile, or offensive working environment.

It is also unlawful to retaliate or take reprisal in any way against anyone who has articulated any concern about sexual harassment or discrimination, whether that concern relates to harassment of or discrimination against the individual raising the concern or against another individual.

Examples of conduct that would be considered sexual harassment or related retaliation are set forth in the Statement of Prohibited Conduct, which follows. These examples are provided to illustrate the kind of conduct proscribed by this policy; the list is not exhaustive.

page 437XYZ Company and its agents are under a duty to investigate and eradicate any form of sexual harassment, gender discrimination, or retaliation. To further that end, XYZ Company has issued a procedure for making complaints about conduct in violation of this policy and a schedule for violation of this policy.

Sexual harassment is unlawful, and such prohibited conduct exposes not only XYZ Company but individuals involved in such conduct to significant liability under the law. Employees at all times should treat other employees respectfully and with dignity in a manner so as not to offend the sensibilities of a coworker. Accordingly, XYZ’s management is committed to vigorously enforcing its Anti-sexual Harassment Policy at all levels within the company.

Statement of Prohibited Conduct

The management of XYZ Company considers the following conduct to represent some of the types of acts which violate XYZ’s Anti-sexual Harassment Policy:

A. Physical assaults of a sexual nature, such as:(1)

rape, sexual battery, molestation, or attempts to commit these assaults; and(2)

intentional physical conduct, which is sexual in nature, such as touching, pinching, patting, grabbing, brushing against another employee’s body, or poking another employee’s body.

B. Unwanted sexual advances, propositions, or other sexual comments, such as:(1)

sexually oriented gestures, noises, remarks, jokes, or comments about a person’s sexuality or sexual experience directed at or made in the presence of any employee who indicates or has indicated in any way that such conduct in his or her presence is unwelcome;(2)

preferential treatment or promise of preferential treatment to an employee for submitting to sexual conduct, including soliciting or attempting to solicit any employee to engage in sexual activity for compensation or reward; and (3)

subjecting, or threats of subjecting, an employee to unwelcome sexual attention or conduct or intentionally making performance of the employee’s job more difficult because of that employee’s gender.

C. Sexual or discriminatory displays or publications anywhere in XYZ’s workplace by XYZ’s employees, such as:(1)

displaying pictures, posters, calendars, graffiti, objects, promotional materials, reading materials, or other materials that are sexually suggestive, sexually demeaning, or pornographic, or bringing into the XYZ work environment or possessing any such material to read, display, or view at work.

 A picture will be presumed to be sexually suggestive if it depicts a person of either gender who is not fully clothed or in clothes that are not suited to or ordinarily accepted for the accomplishment of routine work in and around the workplace and who is posed for the obvious purpose of displaying or drawing attention to private portions of his or her body;(2)

reading or otherwise publicizing in the work environment materials that are in any way sexually revealing, sexually suggestive, sexually demeaning, or pornographic; and(3)

displaying signs or other materials purporting to segregate an employee by gender in any area of the workplace (other than restrooms and similar semiprivate lockers/changing rooms).

D. Retaliation for sexual harassment complaints, such as:(1)

disciplining, changing work assignments of, providing inaccurate work information to, or refusing to cooperate or discuss work-related matters with any employee because that employee has complained about or resisted harassment, discrimination, or retaliation; and(2)

intentionally pressuring, falsely denying, lying about, or otherwise covering up or attempting to cover up conduct such as that described in any item above.

E. Other acts:(1)

The above is not to be construed as an all-inclusive list of prohibited acts under this policy. (2)

Sexual harassment is unlawful and hurts other employees. Any of the prohibited conduct described here is sexual harassment of anyone page 438at whom it is directed or who is otherwise subjected to it. Each incident of harassment, moreover, contributes to a general atmosphere in which all persons who share the victim’s gender suffer the consequences. Sexually oriented acts or gender-based conduct have no legitimate business purpose; accordingly, the employee who engages in such conduct should be and will be made to bear the full responsibility for such unlawful conduct.

Schedule of Penalties for Misconduct

The following schedule of penalties applies to all violations of this policy, as explained in more detail in the Statement of Prohibited Conduct.

Where progressive discipline is provided for, each instance of conduct violating the policy moves the offending employee through the steps of disciplinary action. In other words, it is not necessary for an employee to repeat the same precise conduct in order to move up the scale of discipline.

A written record of each action taken pursuant to the policy will be placed in the offending employee’s personnel file. The record will reflect the conduct, or alleged conduct, and the warning given, or other discipline imposed.

A. Assault:

Any employee’s first proven offense of assault or threat of assault, including assault of a sexual nature, will result in dismissal.

B. Other acts of harassment by coworkers:

An employee’s commission of acts of sexual harassment, other than assault, will result in nondisciplinary oral counseling upon alleged first offense; written warning, suspension, or discharge upon the first proven offense, depending upon the nature and severity of the misconduct; and suspension or discharge upon the second proven offense, depending upon the nature and severity of the misconduct.

C. Retaliation:

Alleged retaliation against a sexual harassment complainant will result in nondisciplinary oral counseling. Any form of proven retaliation will result in suspension or discharge upon the first proven offense, depending upon the nature and severity of the retaliatory acts, and discharge upon the second proven offense.

D. Supervisors:

A supervisor’s commission of acts of sexual harassment (other than assault) with respect to any employee under that person’s supervision will result in nondisciplinary oral counseling upon alleged first offense, final warning or dismissal for the first offense, depending upon the nature and severity of the misconduct, and discharge for any subsequent offense.

Procedures for Making, Investigating, and Resolving Sexual Harassment and Retaliation Complaints

A. Complaints:

XYZ Company will provide its employees with convenient, confidential, and reliable mechanisms for reporting incidents of sexual harassment and retaliation. Accordingly, XYZ designates at least two employees in supervisory or managerial positions to serve as investigative officers for sexual harassment issues. The names, responsibilities, work locations, and phone numbers of each officer will be routinely and continuously posted so that an employee seeking such name can enjoy anonymity and remain inconspicuous to all of the employees in the office in which he or she works.

The investigative officers may appoint “designees” to assist them in handling sexual harassment complaints. Persons appointed as designees shall not conduct investigations until they have received training equivalent to that received by the investigative officers. The purpose of having several persons to whom complaints may be made is to avoid a situation where an employee is faced with complaining to the person, or a close associate of the person, who would be the subject of the complaint.

Complaints of acts of sexual harassment or retaliation that are in violation of the sexual harassment policy will be accepted in writing or orally, page 439and anonymous complaints will be taken seriously and investigated. Anyone who has observed sexual harassment or retaliation should report it to a designated investigative officer. A complaint need not be limited to someone who was the target of harassment or retaliation. Only those who have an immediate need to know, including the investigative officers and/or his/her designee, the alleged target of harassment or retaliation, the alleged harasser(s) or retaliator(s), and any witnesses who will or may find out the identity of the complainant. All parties contacted in the course of an investigation will be advised that all parties involved in a charge are entitled to respect and that any retaliation or reprisal against an individual who is an alleged target of harassment or retaliation, who has made a complaint, or who has provided evidence in connection with a complaint is a separate actionable offense as provided in the schedule of penalties. This complaint process will be administered consistent with federal labor law when bargaining unit members are affected.

B. Investigations:

Each investigative officer will receive thorough training about sexual harassment and the procedures herein and will have the responsibility for investigating complaints or having an appropriately trained and designated XYZ investigator do so.

All complaints will be investigated expeditiously by a trained XYZ investigative officer or his/her designee. The investigative officer will produce a written report, which, together with the investigation file, will be shown to the complainant upon request within a reasonable time. The investigative officer is empowered to recommend remedial measures based upon the results of the investigation, and XYZ management will promptly consider and act upon such recommendation. When a complaint is made, the investigative officer will have the duty of immediately bringing all sexual harassment and retaliation complaints to the confidential attention of the office of the president of XYZ, and XYZ’s EEO officer. The investigative and EEO officers will each maintain a file on the original charge and follow up investigation. Such files will be available to investigators, to federal, state, and local agencies charged with equal employment or affirmative action enforcement, to other complainants who have filed a formal charge of discrimination against XYZ, or any agent thereof, whether that formal charge is filed at a federal, state, or local law level. The names of complainants, however, will be kept under separate file.

C. Cooperation:

An effective anti-sexual harassment policy requires the support and example of company personnel in positions of authority. XYZ agents or employees who engage in sexual harassment or retaliation or who fail to cooperate with company-sponsored investigations of sexual harassment or retaliation may be severely sanctioned by suspension or dismissal. By the same token, officials who refuse to implement remedial measures, obstruct the remedial efforts of other XYZ employees, and/or retaliate against sexual harassment complainants or witnesses may be immediately sanctioned by suspension or dismissal.

Procedures and Rules for Education and Training

Education and training for employees at each level of the workforce are critical to the success of XYZ’s policy against sexual harassment. The following documents address such issues: the letter to be sent to all employees from XYZ’s chief executive officer/president; the Anti-sexual Harassment Policy; Statement of Prohibited Conduct; the Schedule of Penalties for Misconduct; and Procedures for Making, Investigating, and Resolving Sexual Harassment Complaints. These documents will be conspicuously posted throughout the workplace at each division of XYZ, on each company bulletin board, in all central gathering areas, and in every locker room. The statements must be clearly legible and displayed continuously. The anti-sexual harassment policy under a cover letter from XYZ’s president will be sent to all employees. The letter will indicate that copies are available at no cost and how they can be obtained.

XYZ’s anti-sexual harassment policy statement will also be included in the Safety Instructions and General Company Rules, which is issued in page 440booklet form to each XYZ employee. Educational posters using concise messages conveying XYZ’s opposition to workplace sexual harassment will reinforce the company’s policy statement; these posters should be simple, eye-catching, and graffiti resistant.

Education and training include the following components:

1.For all XYZ employees: As part of the general orientation, each recently hired employee will be given a copy of the letter from XYZ’s chief executive officer/president and requested to read and sign a receipt for the company’s policy statement on sexual harassment so that they are on notice of the standards of behavior expected. In addition, supervisory employees who have attended a management training seminar on sexual harassment will explain orally at least once every six months at general meetings attended by all employees the kind of acts that constitute sexual harassment, the company’s serious commitment to eliminating sexual harassment in the workplace, the penalties for engaging in harassment, and the procedures for reporting incidents of sexual harassment.

2.For all female employees: All women employed at XYZ will participate on company time in annual seminars that teach strategies for resisting and preventing sexual harassment. At least a half-day in length, these seminars will be conducted by one or more experienced sexual harassment educators, including one instructor with work experience in the trades for skilled employees in traditionally male-dominated jobs.

3.For all employees with supervisory authority of any kind over other employees: All supervisory personnel will participate in an annual, half-day-long training session on gender discrimination. At least one-third of each session (of no less than one and one-half hours) will be devoted to education about workplace sexual harassment, including training (with demonstrative evidence) as to exactly what types of remarks, behavior, and pictures will not be tolerated in the XYZ workplace. The president of XYZ will attend the training sessions in one central location with all company supervisory employees. The president will introduce the seminar with remarks stressing the potential liability of XYZ and individual supervisors for sexual harassment. Each participant will be informed that they are responsible for knowing the contents of XYZ’s anti-sexual harassment policy and for giving similar presentations at meetings of employees.

4.For all investigative officers: The investigative officers and their designees, if any, will attend annual full-day training seminars conducted by experienced sexual harassment educators and/or investigators to educate them about the problems of sexual harassment in the workplace and the techniques for investigating and stopping it.

Sexual Harassment in General

There are two theories on which an action for sexual harassment may be brought: quid pro quo sexual harassment and hostile environment sexual harassment. The first generally involves the employer requiring some type of sexual activity38 from the harassee as a condition of employment or workplace benefits. page 441The second addresses an offensive work environment to which one gender is subjected but not the other. (See Exhibit 9.3, “Wanted?”) While there are two different types of sexual harassment and each has its own requirements, the U.S. Supreme Court has said that the distinction need not be rigid. In Burlington Industries, Inc. v. Ellerth, the supervisor made threats to the harassee but did not carry them out. The harassee brought suit on the theory of quid pro quo sexual harassment, but rather than deny relief because there had been no loss of a tangible job benefit necessary for quid pro quo sexual harassment, the Court said that the terms quid pro quo and hostile environment are not controlling for purposes of determining employer liability for harassment by a supervisor. Rather, they are helpful in making rough demarcations between Title VII cases in which sexual harassment threats are carried out and where they are not or are absent altogether (see Burlington Industries, Inc. v. Ellerth at the end of this chapter).

quid pro quo sexual harassment: Sexual harassment in which the harasser requests sexual activity from the harassee in exchange for workplace benefits.

hostile environment sexual harassment: Sexual harassment in which the harasser creates an abusive, offensive, or intimidating environment for the harassee.

Exhibit 9.3 Wanted?

One of the requirements of sexual harassment is that the activity be unwelcome. Take a look at these cases and see if this is what you think the law had in mind.

EEOC v. Bon Secours DePaul Med. Ctr., Civil Action No. 2:02cv728 (E.D. Va. 2002)

A jury awarded over $4 million to a hospital administrator who sued for retaliation under Title VII for being forced to resign when she attempted to prevent sexual harassment in the hospital’s operating room. There were complaints of a nurse hugging, kissing, embracing, and rubbing doctors and other staff. The administrator verbally warned the nurse that this was inappropriate behavior. The nurse complained to doctors and staff about unfair treatment and quit. Several doctors complained about the administrator and a prominent doctor threatened to leave the hospital unless the administrator was terminated and the nurse reinstated. The administrator, given the choice to resign or be terminated for “breach of confidentiality,” left. Six days later the nurse returned.

Miller v. Department of Corrections, 36 Cal. 4th 446, 115 P.3d 77 (2005)

The California Supreme Court held that an employee can sue a supervisor engaging in consensual sexual conduct with other employees when it has the effect of creating a “widespread atmosphere of sexual favoritism in the workplace.” This decision forces employers to closely monitor employee relationships.

Statistically speaking, most sexual harassment takes place between males and females, with the male as the harasser and the female as the harassee. But the gender of the harasser need not be male and the gender of the parties does not matter. Males can be sexually harassed also. (See Exhibit 9.4, “Playing Catch Up.”) Keep in mind the statistics provided above about the incidents of male sexual harassment in the military. Unfortunately, because society views males and sex so differently from females and sex, many males do not bring cases for fear of ridicule. Males who are being sexually harassed and wish to put a stop to it often find themselves the object of workplace jokes, teasing, and questioned sexuality, so they forgo filing claims. Even so, EEOC statistics show that claims by men have been increasing, beginning during the 2008–2009 recession.39

Exhibit 9.4 Playing Catch Up

In 1993, when a 10-woman, 2-man jury awarded Sabino Gutierrez more than $1 million in damages for sexual harassment by his boss, Maria Martinez of Cal-Spas, a hot tub manufacturing company in California, it was the largest award in history for a male sexual harassee. Given the rarity of men bringing sexual harassment suits at the time (the harassing events of fondling, kissing, pressure for sex and eventually demotion, began in 1986 and continued for six years), it is almost certain that the novelty of a male suing for sexual harassment played some role in the case and jury award amount.

In the years since, however, such cases have been on the rise and are becoming more common. According to the EEOC, male victims accounted for 12 percent of claims in 1999. By 2009, a decade later, they accounted for 16.4 percent of sexual harassment claims filed with the EEOC. This uptick has been even greater since the country’s 2008–2009 financial crisis resulted in a higher percentage of men losing their jobs. According to the Bureau of Labor Statistics, from September of 2008 to January of 2010, women lost 2.3 million jobs, versus 4.4 million for men. While male victims of sexual harassment may have previously simply quit and found another job, that is not as possible in this economy. As a result, the data indicate that sexual harassment claims rose more in states with higher unemployment rates.

For years, men were hesitant to come forward about sexual harassment in the workplace because it often made them the butt of jokes. There were questions about their sexual orientation, loyalty, character, and toughness once they brought such claims forward. However, once the U.S. Supreme Court ruled in Oncale v. Sundowner Offshore Drilling, Inc., that males could be the victims of sexual harassment by other males in violation of Title VII’s proscription on gender discrimination via sexual harassment, claims by males being sexually harassed began to increase.

Overall, only about 6 percent of sexual harassment cases are ever actually litigated in court, and the harassee wins about one-third of the time, according to a study by the American Bar Foundation.

Sources: Bill Hewitt and Nancy Matsumoto, People Weekly, 1993. Alissa Figueroa, “Workplace Harassment: Same-Sex Sexual Harassment Cases Are on the Rise,” The Christian Science Monitor, 7/21/2010, http://www.csmonitor.com/Business/new-economy/2010/0721/Workplace-harassment-Same-sex-sexual-harassment-cases-are-on-the-rise Sarah Herman, “Male Sexual Harassment on the Rise,” HRM, 6/21/10, http://www.hrmreport.com/news/male-sexual-harassment-claims-rising/.

As a final preliminary matter, the words of Title VII itself do not protect employees from discrimination on the basis of sexual orientation, but since 2015, the EEOC has interpreted it to be a type of gender discrimination due to gender stereotyping. However, well before this the U.S. Supreme Court held in Oncale v. Sundowner Offshore Services Inc. that even though both the harasser and the harasee are the same gender, a harassee can still bring a sexual harassment claim and be protected by Title VII.40 Thus, there is no longer a presumption that if both parties are the same gender, the claim is not covered by Title VII as was the case with many courts before.

Quid Pro Quo Sexual Harassment

In quid pro quo sexual harassment, the employee is required to engage in sexual activity in exchange for workplace entitlements or benefits such as promotions, raises, or continued employment. This is the more obvious type of sexual harassment and is not generally difficult to recognize. (See Exhibit 9.5, “Jones v. Clinton.”) In order for there to be an exchange for some workplace benefit, the harasser generally must have some sort of workplace power or position. The exchange of sex for workplace benefits will often leave a paper trail that can be followed. For instance, if an employee receives a raise, there is usually a basis for it and the paper trail should show whether or not it was justified. The same with a promotion, or more favorable hours or benefits.

Exhibit 9.5 Jones v. Clinton*

Demonstrating that no one seems to be exempt from claims of sexual harassment, in what is probably the most famous sexual harassment case in history, Paula Jones, a former Arkansas state employee, filed suit against a state trooper and a sitting president of the United States. Jones claimed that she was the victim of a sexual advance from President Bill Clinton while he was serving as governor of Arkansas prior to his presidency. The decision of whether the sexual harassment case could be brought against a sitting president went all the way to the U.S. Supreme Court, and the Court saw no impediment to Jones’s bringing the suit. In the end, the Eighth Circuit Court of Appeals affirmed the district court’s dismissal of Jones’s case. The court held that the facts alleged by Jones, even if taken to be true, were insufficient to establish a basis for either quid pro quo or hostile work environment sexual harassment. In the court’s view, the president’s dropping his trousers, fondling his penis, and asking Jones to kiss it, and then backing off when she said no, while boorish, was not sufficiently severe or pervasive to constitute a violation of the statute.

*138 F.3d. 758 (8th Cir. 1998).

In 2013, in a pair of cases brought under Title VII on other bases, the U.S. Supreme Court issued decisions with far-reaching implications for sexual harassment cases. In Ball State University v. Vance,41 the Court rejected the EEOC’s interpretation of who can be considered a supervisory employee for Title VII purposes. The Court determined that for Title VII purposes, a supervisor must have the ability to hire and fire rather than merely to direct work assignments, as had been the case here. In the other Title VII decision issued the same day, Texas Southwestern Medical Center v. Nassar,42 discussed earlier in the Toolkit Chapter section on retaliation, the Court determined that for liability to attach for retaliation under Title VII, the retaliatory act would not have occurred but for the supervisor’s desire to retaliate. The decisions, taken together, were interpreted by Justice Ruth Bader Ginsburg to be so wrongheaded that she took the unusual step of reading aloud in the courtroom her dissent in both cases and called on Congress to overturn the Court’s decisions. It has not done so.

An employer can limit a supervisor’s ability to abuse power by choosing supervisory employees carefully and having in place a system with adequate monitors page 444and checks. It greatly decreases morale, and thus lowers workplace productivity, for other employees to witness quid pro quo harassment by the supervisor. In fact, it has even been held that the other employees witnessing such activity may bring a cause of action of their own.

Hostile Environment Sexual Harassment

The more difficult sexual harassment issues have been in the area of hostile environment because the activity may not be so clear-cut or leave a paper trail. Part of the difficulty lies in the fact that many of the causes that may serve as a basis for liability have historically gone unchallenged. However, a closer look at what courts have held to constitute a hostile environment lends more predictability.

To sustain a finding of hostile environment sexual harassment, it is generally required that

•The harassment be unwelcomed by the harassee.

•The harassment be based on gender.

•The harassment be sufficiently severe or pervasive to create an abusive working environment.

•The harassment affects a term, condition, or privilege of employment.

•The employer had actual or constructive knowledge of the sexually hostile working environment and took no prompt or adequate remedial action.

In light of these requirements, it becomes clear why simply giving polite compliments as in Opening Scenario 2 is not, in and of itself, sexual harassment. Sexual harassment involves much more.

Meritor Savings Bank, FSB v. Vinson was the first sexual harassment case to reach the U.S. Supreme Court. In the case, which is provided at the conclusion of the chapter, the branch manager of a bank engaged in sexually harassing activity with the harassee, up to and including sex in the bank vault. The harassee finally took a leave of absence and was terminated for excessive leave. When she sued for sexual harassment, the employer argued that since she engaged in the sexual activity, the activity did not meet the “unwanted” requirement of the guidelines. The Supreme Court disagreed. In addition, the employer argued that since the harassee lost no raises or promotions, she lost no tangible job benefits, so it was not quid pro quo sexual harassment. Read the case and see if you can now distinguish between quid pro quo and hostile environment sexual harassment.

In Meritor, it is clear that the supervisor’s actions changed the terms and conditions of Vinson’s employment. There is a big difference between the ongoing, pervasive actions of Vinson’s supervisor and merely giving someone an occasional nonsexual compliment as in Opening Scenario 2. In a hostile environment action, the activity must be more than someone committing a boorish, stupid, inappropriate act. The act must come up to the standards the courts and the EEOC have set forth for the cause of action. Contrary to what you may have been led to believe by the press or other information you’ve received, not every act, even if page 445it is unwanted or offensive, will meet that standard; thus, not every act, though considered offensive by the employee, constitutes sexual harassment as set forth by law. (See Exhibit 9.5, “Jones v. Clinton.”)

Unwelcome Activity

The basis of hostile environment sexual harassment actions is unwanted activity by the harasser. (See Exhibit 9.6, “Comparison between Quid Pro Quo and Hostile Environment Sexual Harassment.”) If the activity is wanted or welcome by the harassee it is consensual and there is no sexual harassment. If the activity started out being consensual and one employee calls a halt to it and the other continues, it can become sexual harassment at the time the activity is no longer consensual, as in Opening Scenario 3.

Exhibit 9.6 Comparison between Quid Pro Quo and Hostile Environment Sexual Harassment

QUID PRO QUO SEXUAL HARASSMENT

•Workplace benefit promised, given to, or withheld from harassee by harasser

•In exchange for sexual activity by harassee

•Generally accompanied by a paper trail (for example, promotion, raise, or termination paperwork)

HOSTILE ENVIRONMENT SEXUAL HARASSMENT

Activity by harasser, toward harassee that

•Is unwanted by the harassee.

•Is based on harassee’s gender.

•Creates for harassee a hostile or abusive work environment.

•Unreasonably interferes with harassee’s ability to do his or her job.

•Is sufficiently severe and/or pervasive.

•Affects a term or condition of harassee’s employment.

In making the determination of whether the harasser’s activity was welcome, the actions used as a basis for the determination can be direct or indirect. For instance, in McLean v. Satellite Technology Services, Inc.,43 based on the employee’s previous conduct, the court had no trouble in determining that the harassee welcomed the activity of the harasser, if, in fact, it took place at all. The female employee engaged in a good deal of sexually tinged behavior at work such as pulling up her shirt to show a scar, having sexual conversations on the phone with clients even after being asked not to do so, and being away from her desk at a business conference having sex with people she met there. After being terminated upon return from the conference, she alleged that her supervisor tried to touch her leg and kiss her while they were on the business trip and she was in his room dressed in a bikini (while he was dressed in street clothes). It also demonstrates that there is more to winning a sexual harassment case than simply alleging that sexual harassment occurred.

Of course, there also may be a finding that the harassee did not welcome the activity by the harasser. Evidence can be direct, such as the harassee telling the harasser to discontinue the offending activity, or indirect, such as the harassee using body language, eye signals, and the like to show disapproval of the harasser’s actions. Employees should be told to make it clear to a harasser that the activity is unwelcome; otherwise, the signals may become confused and the harasser may think his or her actions are wanted by the harassee. In Exhibit 9.7, “Wanna Fool Around?” you can see how some employers are trying to address the issue in novel ways.44

Exhibit 9.7 Wanna Fool Around? Sign on the Dotted Line, Please . . .

In the face of increasingly expensive and embarrassing sexual harassment litigation, there have been all sorts of attempts to lessen employer liability. See how you like this workplace idea. You may recall hearing about a similar plan imposed on the students by the administration at a large midwestern university a few years ago to prevent date rape.

“LOVE CONTRACTS” HELP FEND OFF HARASSMENT SUITS

No matter how many training sessions or awareness workshops they conduct, companies still find themselves facing sexual harassment claims. Alarmingly, claims keep going higher up the chain of command, increasingly hitting CEOs. And when such a suit reaches a top executive, it’s not just a department in trouble, but the entire company itself.

The latest trend in fending off sexual harassment suits is a “love contract.” Teresa Butler, managing partner in the Atlanta office of employment law firm Littler Mendelson, explains.

CAN YOU TALK ABOUT THE “LOVE CONTRACT” AND HOW IT WORKS?

It’s really only intended for higher-level executives. This isn’t something we advise employers to put in their handbooks, and we don’t recommend that all supervisors issue them to subordinates. We talk about this for CEOs and officers, top-level executives, and maybe directors; that’s a judgment call for the company. It’s basically for people who have broad power in the workplace—not the average first-level supervisor.

WHAT’S INCLUDED IN THE CONTRACT?

The love contract does three things. First, it restates the voluntary nature of the relationship. The CEO, or whoever is in this situation, issues the agreement to a subordinate employee, basically explaining to the individual, “I want to have this relationship with you. My understanding is you want to have this relationship with me. But I’m concerned that over time you might believe that the continuation of this relationship—even though you don’t want it anymore—might be necessary for you to be successful here. As you know, we have a harassment policy, and I want you to understand that I’m aware of that policy and would never allow [the end of the relationship] to influence my decision making with regard to your employment.” So the agreement is actually a formal contract. It restates the voluntary nature of the relationship.

WHAT ELSE SHOULD A LOVE CONTRACT DO?

Second, it affirms that the parties will use the company’s sexual harassment policies if a problem arises, and it confirms the existence of those policies and [procedures]. It also states that if the policies aren’t used, it’s fair to assume there isn’t a problem. And third, the parties agree if work-related disputes arise, they’ll resolve their differences using alternative dispute resolution (ADR) rather than resorting to the courts. Some might want to use that third piece and some might not, but we recommend ADR from a legal standpoint.

HOW ARE THESE CONTRACTS USEFUL?

Often these relationships go bad at some point; one party wants to end it and the other doesn’t. And then there’s retaliatory conduct by the other, sometimes by the subordinate in the form of a sexual harassment complaint. So, this contract is a method for the top-level executives to just say out loud what is actually the case. It’s assurance for the company and the individuals that everybody understands what the rules are.

HOW LEGALLY DEFENSIBLE IS A LOVE CONTRACT?

The first response we typically hear, especially from lawyers, is: How could this possibly be enforceable? The idea is this person can always come back and say this was coerced, that he or she was forced to sign this agreement. That’s a risk you take with any contractual relationship because an employee is always in a subordinate role to the employer. If you take that to its logical end, you might as well say you could never have an enforceable contract with an employee.

SO, CAN THEY RAISE THAT ISSUE?

Of course, they can. But are you better off with the contract than without it? Yes. I think it’s a pretty tough argument for an individual who signs this agreement to say that he or she was coerced into having this consensual relationship that you’ll be able to [prove] the person had. There’s usually evidence in these cases of a consensual relationship: You’ve got birthday cards, receipts for dinner, letters and other types of communications that the subordinate employee has clearly engaged in on a voluntary basis.

“LOVE CONTRACT” SAMPLE LETTER

Dear [Name of Object of Affection]:

As we discussed, I know that this may seem silly or unnecessary to you, but I really want you to give serious consideration to the matter as it is very important to me. [Add other materials as appropriate]

I very much value our relationship and I certainly view it as voluntary, consensual, and welcome, and I have always felt that you feel the same. However, I know that sometimes an individual may feel compelled to engage in or continue in a relationship against their will out of concern that it may affect the job or working relationships.

It is very important to me that our relationship be on an equal footing and that you be fully comfortable that our relationship is at all times fully voluntary and welcome. I want to assure you that under no circumstances will I allow our relationship or, should it happen, the end of our relationship, to impact on your job or our working relationship. Though I know you have received a copy of [our company’s name] sexual harassment policy, I am enclosing a copy [Add specific reference to policy as appropriate] so that you can read and review it again. Once you have done so, I would greatly appreciate your signing this letter below, if you are in agreement with me.

[Add personal closing]

Very truly yours,

[Name]

I have read this letter and the accompanying sexual harassment policy, and I understand and agree with what is stated in both this letter and the sexual harassment policy. My relationship with [name] has been (and is) voluntary, consensual, and welcome. I also understand that I am free to end this relationship any time, and doing so will not adversely impact on my job.

[Signature of Object of Affection]

Source: Teresa Butler, Littler Mendelson, Atlanta, 888- LITTLER; Gillian Flynn, Workforce Magazine, March 1999, pp. 106–108.

In another type of welcomeness issue, the Hooters restaurant chain was involved in several cases that, among other things, brought up the question of unwelcomeness parameters. As discussed in the previous chapter, Hooters is a chain of over 430 restaurants in 44 states and 28 countries. It is noted for its buffalo chicken wings and scantily clad female servers. Several lawsuits have been filed by female servers who were allegedly illegally fired or forced to quit because of sexual harassment.

The suits alleged that the environment created by management for female servers was hostile, starting with the name “Hooters,” which is a slang term for women’s breasts. Servers (a position for which Hooters only hires females), who are required to wear uniforms of revealing shorts and T-shirts, alleged that they were required to endure an atmosphere of sexually offensive remarks, touching, and other conduct by both management and customers. For example, the sign on entering Hooters reads, “Men: no shirt, no shoes: no service. Women: no shirt: free food.”

An important issue in the lawsuits was whether, as the company argued, the women assumed the risk of the activities directed at them by agreeing to work for the company—that is, whether the conduct was welcomed by the fact that the servers worked for a company whose concept encouraged such behavior. What do you think? Should it matter if, as it turns out, the uniform requirement is illegal under Title VII? Check out the Hooters website and Wikipedia entry and see if you agree, as Hooters argued, that it is merely a neighborhood restaurant (previously it had argued it was a family restaurant), complete with a children’s menu. There is at least some truth to the family restaurant claim. One of our students said his Little League baseball coach took the all-male team to Hooters to celebrate his 12th birthday and they loved it. The coach was his dad. :-/

Severe and Pervasive Requirement

One of the most troublesome problems with hostile environment is determining whether the harassing activity is severe and/or pervasive enough to amount to an unreasonable interference with an employee’s ability to perform. (See Exhibit 9.3, “Wanted?”) Built into the elements of hostile environment sexual harassment is a requirement that the offending activity be sufficiently severe and/or pervasive. That is, the activity is not an isolated occurrence that is not serious enough to warrant undue concern. The more frequent or serious the occurrences, the more likely it is that the severe and/or pervasive requirement will be met. If it is egregious enough, one time may meet the severity requirement, for example, in the case of rape.

severe and/or pervasive activity: Harassing activity that is more than an occasional act or is so serious that it is the basis for liability.

In Ross v. Double Diamond, Inc.,45 events over a two-day period were determined to meet the requirement for severity. Within hours of being hired, a female employee endured groping, sexually suggestive comments and jokes, a demand that she pull up her dress and allow her legs to be photographed, and a photo being taken up her dress as she reached across a desk to deliver a message in an all-male meeting.

Regarding the “unreasonable interference” requirement, in the U.S. Supreme Court decision in Harris v. Forklift Systems46 the company owner constantly infused sexual comments and actions into the workplace by, for instance, making female employees dig in his front pockets for change, or throwing it on the floor and making them bend down and pick it up so he could see their backsides. The employee finally left after the owner promised not to continue this behavior yet after she made a profitable deal, he said in front of other employees that she must have negotiated it in the Holiday Inn. The U.S. Supreme Court decided that sexual harassment claims do not require findings of severe psychological harm to be actionable. The Court said that “so long as the environment would reasonably page 449be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious.”

Whether an environment is hostile or abusive must be determined by looking at all the circumstances. These may include the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. According to the Court, no single factor is determinative. (See Exhibit 9.8, “Is ‘Discomfort’ Enough?”)

Exhibit 9.8 Is “Discomfort” Enough?

Students often think that merely feeling uncomfortable about something going on in the workplace is sufficient to sustain a claim under Title VII for hostile environment sexual harassment. As you can see from this situation, this is far from the case—or is it?

A male sales representative for Canon, Inc., had, as part of his territory, a store owned by a woman, his client. At a Christmas party, the female store owner/client was inappropriately touched, hugged, and kissed on the face and forehead by the sales rep’s immediate supervisor. The client decided she did not want to complain about it. The sales rep complained to the company anyway. When the supervisor to whom the complaint was made called the client to discuss it as part of the investigation of the claim, the client again said she did not want to pursue the matter. When the sales rep was told this, he called the client and left a voice mail message expressing his anger at her refusal to corroborate his claims against his supervisor. In a “loud, rapid” voice, he used abusive language, told her he was “pissed off,” accused her of lying to Canon, and said that he was going to “lose his f-ing job” and she needed to back up his claim of the harassment against her. Because of the message, the client was so afraid of the sales rep that she would no longer allow him in her store. When the company found out about the voice mail message, the sales rep was fired. Canon, Inc., told him his conduct toward the client was unprofessional and unacceptable and would not be tolerated under any circumstances. The employee filed suit for retaliation under Title VII, claiming that the company terminated his employment because he complained about the sexual harassment of his client. Canon said the termination was for sufficient cause based on his actions toward the client.

As part of his claim, the employee alleged that the sexual harassment action against the client presented a hostile environment for him because he was “made uncomfortable” by his boss’s alleged advances toward his client.

The court did not agree. The court said “feelings of ‘discomfort’ cannot support a hostile environment claim. Instead, such a claim is stated only where plaintiff alleges that the conditions of his workplace were so permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.” [Kunzler v. Canon, USA, Inc., 257 F. Supp. 3d 574 (E.D.N.Y. 2003).]

On the other hand, in August 2003, the Minneapolis Public Library entered into a settlement agreement with its employees for $435,000 after the employees accused the library administration of subjecting them to a hostile environment by leaving them exposed to patrons’ displays of explicit websites.*

Do the two square for you?

*“Minneapolis Librarians Reach Settlement,” University of Minnesota Silha Center for the Study of Media Ethics and Law Bulletin, Summer 2003, http://www.silha.umn.edu/news/summer2003.php?entry5200797.

Perspective Used to Determine Severity

For many years the determination of whether the harasser’s activity was sufficiently severe and pervasive was generally based on a reasonable person standard, which is supposed to be a gender-neutral determination. That is, the activity would be judged as offensive (or not) based on whether the activity would offend a reasonable person under the circumstances. Since this “neutral” standard generally turned out to be instead a male sensibility standard, the EEOC issued a policy statement by which it required that the victim’s perspective also must be considered so as not to perpetuate stereotypical notions of what behavior is acceptable to those of a given gender. This notion, labeled the “reasonable woman” or reasonable victim standard, has been used increasingly by courts and should be given serious consideration when evaluating harassing activity. If the victim is a male, it would, of course, be a reasonable man standard.

reasonable person standard: Viewing the harassing activity from the perspective of a reasonable person in society at large (generally tends to be the male view).

reasonable victim standard: Viewing the harassing activity from the perspective of a reasonable person experiencing the harassing activity including gender-specific sociological, cultural, and other factors.

In Ellison v. Brady, provided for your review at the end of this chapter, the court adopted a reasonable woman standard for analyzing whether the harasser’s behavior was severe and pervasive enough to create a hostile work environment. It explains why viewing severity and pervasiveness from this perspective may render different results. The U.S. Supreme Court has not addressed the reasonable victim versus reasonable person dichotomy as a direct issue, but in Oncale v. Sundowner Offshore Services Inc.,47 the Court’s first case involving same-gender sexual harassment, it said “the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position.” The Ellison v. Brady case was the basis for the movie Hostile Advances, starring Rena Sofer and Victor Garber.

“Sexual” Requirement Explained

While the harassment of the employee must be based on gender, it need not involve sex, requests for sexual activity, sexual comments, or other similar activity. Even today, a female entering a workplace with few or no other females is often verbally harassed about “doing men’s work,” “taking away the job a man should have,” or simply inappropriately working at a traditionally male job. It is no coincidence that the Marines’ nude photo scandal occurred in a traditionally alpha male environment. Despite the lack of sexual overtones (though the comments are obviously based on gender), this could well constitute sexual harassment. In the case of Andrews v. City of Philadelphia,48 the sexual activity was only a small part of what the females who came into the traditionally male job of police officers were subjected to. They were called very derogatory names, their property was vandalized, their files were stolen or ripped, officers who were supposed to help them would not, their cars were vandalized, soda was poured into their typewriters, obscene phone calls were made to their unlisted numbers, a caustic substance was poured into one officer’s locker and she received severe burns on her back when she put on a shirt from the locker, and pornographic material was put in their desks and male officers would gather around to see their reaction. When they reported it to their supervisor, he did nothing.

Notice how little of what they went through conforms to what we usually think of as sexually based hostile environment. This “non sex” requirement is also one page 451of the reasons it is better to use the term gender in sexual harassment discussions so that sex in the traditional sense, and gender, meaning whether one is male or female, are clearly differentiated and the discussion less confusing. The Andrews case gives you a good example of how serious hostile sentiments can become.

A common element of hostile environment sexual harassment cases that may lack an actual sexuality factor is antifemale animus exhibited by the harasser toward those of the harassee’s gender. This is manifested through, for instance, the use of derogatory terms when referring to women or making negative comments about their fitness or ability to do the job. Courts also have found antifemale animus in derogatory statements to or about women in the context of their jobs, such as “women have shit for brains,” “should be barefoot and pregnant,” “should not be surgeons because it takes them too long to bathe and put on makeup,” “could never stand up to union representatives,” “are unstable when they are ‘in heat’ [having their menstrual cycle, said to a female doctor],” or “all she needs is a good lay.” Often antifemale animus is accompanied by sexually based activity, but need not be. A manager should not dismiss a harassee’s complaint simply because it does not involve sexually related activity. (See Exhibit 9.9, “All in Good Fun? Just Joking . . . .”)

antifemale animus: Negative feelings about women and/or their ability to perform jobs or functions, usually manifested by negative language and actions.

Exhibit 9.9 All in Good Fun? Just Joking . . .

A number of sexual harassment cases arise from situations having nothing to do with “sex” as we ordinarily think of it. It has to do instead with gender— more specifically, antifemale animus, or feelings against women who are in male-dominated or traditionally male jobs such as truck driving, construction, firefighting, trash collection, and so on. Even when males are in traditionally female jobs, they rarely are subjected to the same kind of actions directed toward them that women in traditionally male fields are. And often, when men in a traditionally female job are subjected to harassing activity, it is by other males who tease, joke, make derogatory comments, and more. Case law indicates that male nurses generally do not get hassled by female nurses or male kindergarten teachers by female kindergarten teachers.

Students, and even managers and supervisors in the workplace, often comment that “it’s only joking” and that women who complain are being “overly sensitive.” What they don’t understand is that rarely is the ribbing or joking an isolated event. Rather, it is usually accompanied by other indicators in the workplace that one gender is being treated differently, less well, than another. Rarely will you find women progressing as they should in a workplace when the atmosphere exhibits antifemale animus through jokes, ribbing, and derogatory gender-based comments. It all goes together and creates a certain environment that is less likely to allow women to progress. The thought is parent to the act. Antifemale animus manifested through jokes, comments, and ribbing is very likely also to be manifested in lack of full participation in the workplace for women through pay, training, discipline, and advancement. It’s never “just jokes.” That is why it is such a serious matter.

As a manager or supervisor, how you handle these events as they occur can make all the difference in the world for your employer. It may seem like only joking, ribbing, or all in good fun, but as a manager, you ignore it at the peril of your company. Heaped on an employee day after day, this harassing activity places upon them different terms page 452or conditions of employment than it does other employees of the other gender who do not have to contend with this hostile environment.

The Los Angeles City Council awarded a female member of the city’s canine unit $2.25 million for the harassment she suffered in the unit. She alleged the men took items from her desk and the women’s locker room, used her shower and hygiene products, exposed their genitalia, made offensive and sexually explicit remarks, excluded her from training exercises and other opportunities, barred her from “cigar” meetings held to discuss training issues and practices, blew cigar smoke in her face, and was told another officer rubbed his penis on her phone. When she reported these events, the harassment worsened. The week before her settlement, an officer who was demoted and suffered retaliation when he defended her was awarded $3.6 million.

Source: Joanna Linn, “LAPD Officer Awarded $2.25 Million in Harassment Case,” The Los Angeles Times, 11/20/2008, http://articles.latimes.com/2008/nov/20/local/me-harass20.

In analyzing hostile environment claims, keep in mind that it can be accomplished also by electronic means. Claims involving sexual harassment through workplace email, bulletin boards, chat rooms, and social websites have increased dramatically in the past few years. Think about the Marines United situation. It is best to be aware of the potential for liability. Again, there need not be a sexual element involved in order for it to constitute sexual harassment. It is a good idea to have a well-enforced workplace policy giving guidelines for this kind of activity and to keep up with any technological changes that may result in new ways for liability to occur.

Employer Liability for Sexual Harassment

The U.S. Supreme Court has been wrestling with the issue of employer liability for sexual harassment since it decided the first case on the subject in 1986 (Meritor, discussed earlier in the chapter). In its Ellerth case, also discussed in this chapter, the Court said that it was hearing the case in order to assist in defining the relevant standards of employer liability since “Congress has left it to the courts to determine controlling agency law principles in a new and difficult area of federal law.” Without trying to drag you into the legal mire that has surrounded the issue, we will give you some general rules with which to operate and leave the intricacies for the courts to continue to unravel.

Supervisor toward Employee (Tangible Employment Action)

This is generally going to be quid pro quo sexual harassment (for instance, the employee’s supervisor denies the employee a raise or promotion because she refuses to have sex with him), but the courts have said that the categories are not cast in stone. An employer is strictly liable for the tangible acts of its supervisors 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. Since the supervisor is, in effect, the employer, the supervisor’s acts are considered those of the employer.

page 453The employer has a measure of control of the situation by carefully choosing supervisory employees. As discussed, in a tangible job action there is usually a paper trail involved, so it also gives the employer a measure of control by keeping up with what is going on in the workplace and monitoring for actions that may violate the law. For instance, if an employee is precipitously terminated or demoted, not given a raise if it is expected, or given a raise if none is expected, there will be a paper trail and the law holds the employer responsible for knowing what is going on in the employer’s workplace. The law says the employer cannot engage in sexual harassment, so doing so through a supervisor is tantamount to the employer doing it and the employer is strictly liable for the harassment. You can thus see why even though Justice Ginsburg dissented mightily over the Court’s decision in Ball State University v. Vance, the decision actually very much reflected the Court’s previous positions. While the Court had not specifically said that a supervisor must have the authority to hire and fire, its language could be said to be consistent with that conclusion. However, as Justice Ginsburg noted, such a holding does not reflect the reality of the workplace since employers often have employees to whom they give important authority over other employees that falls short of the authority to hire and fire.

Supervisor toward Employee (No Tangible Employment Action)

If there is no tangible employment act by a supervisor, such as termination, and instead there is activity by a supervisor causing a severe and/or pervasive hostile environment resulting in harm to the harassed employee (for instance, the supervisor may constantly ask the employee out on dates and make sexual comments, but still give the employee her usual raises and promotions), the employer is not strictly liable. This is also true of a constructive discharge. As you will see below, in constructive discharge, the workplace becomes so unbearable, objectively speaking, that the employee has no real option except to leave. In these situations, the harassed employee can bring a claim, but there is no virtually automatic liability like there is for strict liability offenses. Here, the employer has an affirmative defense available. The employer can use the Ellerth/Faragher defense to show that the employer had a reasonable sexual harassment policy to prevent and address sexual harassment and the harassed employee unreasonably failed to use it. This defense is not permitted in a case where there is a tangible unfavorable job action by a supervisor.

Co-Worker Harassment or Third-Party Harassment of Employee

When the harassment is by (1) one employee toward another on the same level (rather than by a supervisory employee to a subordinate) or (2) someone who is not employed by the employer, such as a client or someone who comes in to service the machinery at the employer’s business, the employer is liable if the employer knew or should have known of the acts of the harasser and took no immediate corrective action.

For instance, if the computer repairer comes to service computers and regularly feels the employee’s legs while working with wires under the desk or makes page 454inappropriate and suggestive sexual comments, the employer would be liable even though the repairer does not work for the employer. The employee would usually have to make the employer aware of the situation and the employer would have to take no steps to remedy the situation before liability would attach. If the employer saw what was happening and saw that the employee was clearly upset by the situation, the employer would-be put-on notice that something should be done and liability could attach. The same is true with co-workers. That is why it is so important for managers and supervisors to be aware of what is going on around them in the workplace and deal with it effectively. The law will hold the employer responsible through the acts of the supervisory employees who were aware and took no action to rectify the situation.

In Faragher v. City of Boca Raton, for your review at the end of this chapter, the U.S. Supreme Court discussed employer liability for sexual harassment. The case involved sexual harassment of lifeguards who were stationed in a remote (from the main office) location, which resulted in less supervision of what was occurring. The Court provided employers not only with a defense they could use when sued by an employee who had not acted reasonably in seeking to avoid harm (the Ellerth/Faragher affirmative defense) but also with ammunition for an employee who could allege that the employer did not use reasonable measures to prevent sexual harassment.

Sometimes, the employee is not terminated but instead believes the harassment is so unbearable that he or she must quit his or her job without going through the employer’s sexual harassment complaint process. This is constructive discharge. In Pennsylvania State Police v. Suders,49 the Supreme Court addressed what to do if a supervisor’s actions result in a constructive discharge for an employee and whether such a discharge is loss of a tangible job benefit, resulting in strict liability for the employer. The Court said that when there is no official act resulting in the constructive discharge, and thus, no way for an employer to be made aware that there was an issue resulting in the constructive discharge, rather than strict liability attaching to the employer, the employer is able to use the Ellerth and Faragher affirmative defense to show how it tried to avoid liability.

In Robinson v. Jacksonville Shipyards, Inc., which we mentioned earlier in the context of sexual harassment policies, the court provided important information as to how sexual harassment cases should be handled. It is the basis for Opening Scenario 1. The case involved nude pictures, magazines, plaques, and posters in the workplace. When the employee complained, she was told she simply should not look. The court said this was not an appropriate response by the employer, as this type of paraphernalia creates a hostile environment for which the law will hold the employer liable.

Remember that it is a defense to liability if an employer can show that the harassee unreasonably failed to avail himself or herself of a mechanism the employer had in place for preventing or correcting sexual harassment. Likewise, it is helpful to a harassee if he or she can show that the employer had unreasonable means of preventing or correcting sexual harassment (for instance, the only one to whom claims are reported is the harasser). This makes it more important than ever for an employer to page 455have a strong sexual harassment policy as well as effective training, monitoring, and reporting of sexual harassment. The EEOC has determined that since harassment of any kind is the only type of discrimination carried out by a supervisor for which an employer can avoid liability, that limitation is to be narrowly construed.

Other Important Considerations

There are several other important miscellaneous matters you should be aware of that are often at issue in sexual harassment claims.

Determining the Truth of Allegations

The number one problem managers have in responding to sexual harassment complaints (other than their discomfort in dealing with such matters) is determining the truth of sexual harassment allegations. We cannot tell you how many times we have heard employers and managers say, “We don’t know who to believe! How are we supposed to know who is telling the truth? We don’t want to wreck someone’s career if we don’t have to!” Appropriate investigation should provide the employer a basis on which to decide and to appropriately respond. Both parties, as well as any witnesses, should be questioned. The investigator’s objective is to find out the “who,” “what,” “when,” “where,” and “how” of the allegations as quickly and as discreetly as possible. Employees should be involved only on a “need to know” basis. When all appropriate evidence is gathered, much like the members of a jury, the employer must determine the facts. The employer bases the determination on who seems most credible, whose version of the alleged incidents is more likely to be closer to the truth, what interests the parties have in telling their version of the events, and any credible corroboration presented. The common problem of the employer’s discomfort with making judgments should not, as it so often does, prevent moving quickly and appropriately on complaints. We have often seen that the main discomfort actually stems from preferring not to have to deal with the issue at all. Once it is clear that the activity may be illegal, there is no choice. It must be done. It is not a choice, any more than it would be in a rape case, which rarely has witnesses to what occurred.

The EEOC’s Policy Guidance on Harassment provides insight into how credibility determinations are to be made. According to the EEOC, while none of the following is necessarily determinative, factors to consider in deciding credibility include

•Inherent plausibility. Is the testimony believable on its face? Does it make sense?

•Demeanor. Did the person seem to be telling the truth or lying?

•Motive to falsify. Did the person have a reason to lie?

•Corroboration. Is there witness testimony (such as testimony of eyewitnesses, people who saw the person soon after the alleged incidents or people who discussed the incidents with him or her at or around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?

•Past record. Did the alleged harasser have a history of similar behavior in the past?

page 456We wish there was more we could tell you, but the truth is, there isn’t much more that can be said. It can be uncomfortable, but investigating and making a decision must be done, and there are no special tools to do it, much like a jury has no special tools when deciding a murder case. They just come in, listen carefully to the evidence, observe carefully, and make a determination using their best judgment based on what they have taken in. There is no magic, no easy way to do it. Responding quickly, taking the matter seriously, using your best judgment to evaluate what you find, and going where the information leads you are the best tools you can use in determining the truth of the matter.

Retaliation and Employee Privacy

Often harassees report sexual harassment and, out of fear of retaliation, want the employer to provide relief without informing the alleged harasser of the complaint or of the harassee’s identity. Harassees should be informed that the alleged harasser must be told of the complaint for the employer to effectively address it but that retaliation will not be tolerated, as the law has separate retaliation provisions. Alleged harassers are not required to play hide-and-seek with claims and claimants. As uncomfortable as the claimant may be in coming forward, the alleged harasser must be notified.

According to the EEOC, there has been a dramatic increase in the number of retaliation claims in recent years. In 2016 they were the number one claim reported. The EEOC has been clear in reiterating that it takes such cases very seriously. Courts and juries have been clear in sending the message that they do not like retaliation by employers for employees pursuing their legal rights under the law. Punitive damages are likely to be granted in such cases since retaliation, in a manner of speaking, adds insult to injury and is much more deliberate. It is important to energetically pursue retaliation claims because the law protecting employees is meaningless if those who need the law cannot use it for fear of what may happen to them if they do. Who would want to take the risk?

Corrective Action

The EEOC guidelines state that the employer must take “immediate and appropriate corrective action” to remedy sexual harassment. The most appropriate thing to do under the specific circumstance depends on the facts. Consideration should be given to such factors as the employment position of the employees, the activity involved, the duration of the actions, the seriousness of the actions, the employer’s sexual harassment policy and other methods used to deter sexual harassment, the alleged harasser’s prior history of sexual harassment, and so on. While the remedy must be calculated to stop the harassment and must not have the effect of punishing the harassee, neither should it be out of proportion to the act. Make sure the punishment fits the crime. Every act of sexual harassment need not result in automatic termination, the “capital punishment” of the workplace. In its 2016 Task Force Report on Workplace Harassment, the report took the position that this is why “zero tolerance” policies should be discouraged. They promote the idea that all sexual harassment is the same and should have the same consequences. That makes no sense. Telling an inappropriate off-color joke should not be page 457treated the same as locking someone in a storeroom and sticking your hand down his or her pants. Zero tolerance policies may seem to make the issue easier to deal with, but it does little to create the sexual harassment-free workplace an employer wants.

With all this in mind, the good news is that there is now a more formalized purpose to all this. For years, courts admonished employers to take claims seriously and respond accordingly, but this had no consistent, formalized result for the employer. Employers could do the best they could and still get into trouble with the law. That is no longer so for certain cases. Through two cases you have already been introduced to in this chapter, Faragher and Ellerth, the U.S. Supreme Court created the Ellerth/Faragher affirmative defense we spoke of earlier, which employers can use to protect themselves from liability when they have tried to consistently obey the law. In Burlington Industries, Inc. v. Ellerth, the Court outlines that defense and provides employers with a good deal of control over avoiding and/or limiting liability for violations of Title VII when there is no loss of tangible job benefits because of a harasser’s action. Keep in mind that the defense can only be used where there was no tangible employment action by a supervisor.

Damages and Jury Trials

We discussed these issues in Chapter 2, “The Employment Law Toolkit,” but due to the sensitive nature of this area, we thought it was worth reiterating. Under the Civil Rights Act of 1991, based on the number of employees employed by the employer, an employee suing for sexual harassment can ask for up to $300,000 in compensatory and punitive damages (and unlimited medical damages) and request a jury trial. Both these factors greatly increase the employer’s potential liability for sexual harassment and make avoiding liability for this unnecessary activity even more imperative.

As you can imagine, after the 1991 amendments allowed damages and jury trials, Title VII claims increased dramatically. It finally made economic sense to go through the time-consuming, arduous process of suing, for both claimants and their attorneys. Of course, this was not a welcome event for employers. In sexual harassment cases in particular, jury trials can be very damaging. The nature of the activities constituting the claim can be quite emotional for a jury to hear, not to mention the stress it puts on the employee and the embarrassment for the employer. That is why it is even more important not to let things get that far unless the employer is certain of victory—which is virtually unknown since juries are unpredictable.

In response to our country’s exploding litigation dockets, the use of alternative dispute resolution, or ADR, for settling disputes went from a backwater alternative to litigation to one of the most-used methods. As we discussed in the chapter on Title VII, the EEOC has now institutionalized the use of ADR in its proceedings in several ways and has gotten employers to do the same, using their own extensive, in-house ADR resources. Among other things, the EEOC conducts mediation on appropriate claims filed with them, and in 2003, it began pilot or start-up programs for handling its own internal complaints, a program to have Fair Employment Practice Agencies mediate private-sector claims, and a program in which national employers handle claims of their employees informally before handing it over to the EEOC (if it is necessary to do so). Many attorneys and court systems now also offer ADR as a part of their services.

page 458

Management Tips

Sexual harassment doesn’t have to be the employer’s worst nightmare. Don’t ever expect to have absolute control over every employee in the workplace, but following the tips below can substantially decrease the chances of a recalcitrant employee causing liability.

Seriously dealing with the issues, both in word and deed, should be the rule. The EEOC and courts take the position that the best thing an employer can do to effectively keep sexual harassment complaints to a minimum—and to minimize liability for sexual harassment complaints that do occur—is to take a preventive approach. This may include the following:

•Adopt an anti-sexual harassment policy discouraging such activity. This should be separate from the general antidiscrimination policy, and every employee should be aware of it.

•Make sure, from the top down, that all employees understand that sexual harassment in the workplace simply will not be tolerated. Period.

•Create and disseminate information about an effective reporting mechanism for harassees, including alternatives when the harasser is the one who would normally be the one to whom to report.

•After adopting the policy, don’t let it sit in a drawer somewhere. Use it. Consistently remind employees of it.

•Provide employees with training and/or information apprising them of what sexual harassment is and of what specific activities are appropriate and inappropriate in the workplace. This will go a very long way toward decreasing potential liability for the employer.

•Ensure that reported incidents of sexual harassment are taken seriously by supervisors and others involved in reporting. Do not tell the employee to “get over it,” or that it is to be expected because of where they work or the job they hold.

•Ensure that the training employees receive is effective and answers their questions and concerns and that the training is interactive and engaging.

•Keep in mind that creating an atmosphere in which sexual harassment is not tolerated is a big part of what the EEOC and courts want employers to do. Operationalize this on a real-life basis. That is, when employees engage in activity that helps to create an atmosphere that accepts harassing activity, challenge it. Don’t tolerate the jokes, sneers, leers, teasing, gestures, and so forth.

•Promptly investigate all sexual harassment claims and circulate information only on a need-to-know basis.

•Keep an eye out for antifemale animus that also may constitute sexual harassment.

•If investigation warrants discipline for the harasser, ensure that immediate, appropriate corrective action is taken. Make sure the corrective action is commensurate with the policy violation. Immediate termination is not the response to every sexual harassment claim.

•Work to keep the workplace friendly and open. Having a workplace free of sexual harassment does not mean employees can’t still work in a pleasant, respectful atmosphere.

page 459ADR is a much less acrimonious, expensive, time-consuming alternative that also has the bonus of not being on the public record, for the most part, or precedent setting, in the formal sense. If you are an employer or employee, it would probably be in your best interest to try this route before going to court. You have little to lose and a host of benefits to gain.

Tort and Criminal Liability

In addition to bringing an action under Title VII, harassees also may bring civil actions in state court—or, if permitted, federal court—based on state laws that also may be violated by the actions of the alleged harasser. Recall that in Meritor, the first sexual harassment case to come before the U.S. Supreme Court, the bank manager was alleged to have fondled the plaintiff in public, followed her to and entered the ladies’ restroom with her, and engaged in unwelcome sexual intercourse, including while in the bank’s vault. These acts, while constituting sexual harassment under Title VII, also could form the basis for various tort actions including:

Assault: Intentionally putting the victim in fear or apprehension, or both, of immediate unpermitted bodily touching.

Battery: Intentional unpermitted bodily touching.

Infliction of emotional distress: An intentional outrageous act that goes outside the bounds of common decency, for which the law will provide a remedy.

False imprisonment: Intentionally preventing the harassee’s exit from a confined space.

Interference with contractual relations: Intentionally causing the harassee to be unable to perform her employment contract as agreed upon.

These cases are generally heard by juries, with the possible result of unlimited compensatory and punitive damages. In addition, the harasser’s action could form the basis of criminal prosecution for, at a minimum, criminal assault, battery, and rape. Of course, the criminal cases would be against the harasser, rather than the employer, and would result in punishment for the harasser, rather than money damages to the harassee (unless the state has a victim assistance or restitution program). In Miller v. Washington Workplace,50 the employee was assaulted and battered by her boss after simply asking for the company’s sexual harassment policy!

Chapter Summary

•Consensual activity is not a violation of Title VII.

•Unwelcome sexual advances that cause one gender to work under conditions or terms of employment different from those of the other gender constitute sexual harassment for which the employer may be liable.

•Employers will be responsible only if the sexual harassment is severe and pervasive.

•Activity need not be sexual in nature to constitute sexual harassment. page 460

•Employers should treat all sexual harassment complaints seriously and act on them quickly.

•Prevention is imperative to avoid sexual harassment claims and lessen liability. The employer must make it clear that sexual harassment will not be tolerated. This should be clearly stated and followed up and monitored by appropriate mechanisms.

•Employers need a strong anti-sexual harassment policy that is vigorously enforced.

Chapter-End Questions

1.Employer uses the “f***” word frequently in the workplace and makes statements to employee such as, in regard to an installer, he was always confused and bet that as a baby he “probably didn’t know which tit to suck”; and in discussing a motorcycle seat, cupped his hands and said he would be “glad to fit employee’s ass for the right size seat.” Is this likely to be successful as a sexual harassment suit? [LaPorte v. Fireplace and Patio Center, Inc., 2004 U.S. Dist. LEXIS 2113 (W.D. Ill. 2004).]

2.Employee, a 33-year-old unmarried male, is frequently teased by the other males in his plant about being unmarried and still living at home with his mother. Is this sexual harassment? [Goluszek v. Smith, 697 F. Supp. 1452 (N.D. Ill. 1988).]

3.Employee sues employer for sexual harassment because her supervisor once touched her on her back and made an “untoward” statement to her. Will she win? Explain. [Strickland v. Sears, Roebuck and Co., 693 F. Supp. 403 (E.D. Va. 1988).]

4.Two employees, Marge and Ben, are having a relationship that later turns sour. When Marge does not get the promotion she goes up for, she sues the employer for sexual harassment, alleging it was committed by her ex-boyfriend Ben, who has, since their breakup, left Marge alone. Will Marge win her suit? [Koster v. Chase Manhattan Bank, 687 F. Supp. 848 (S.D.N.Y. 1988).]

5.Dennis comes up to his supervisor, Mae, at a Christmas party and tells Mae he wants to sue for sexual harassment. Mae asks what happened. Dennis says that Linda came over to him and tweaked his cheek and called him sweetie. Dennis pursues the case. Does he win? Why or why not? [Facts from business consulting session attendee.]

6.An employer asks an employee to go to dinner and drinks and said they could “see what happen(ed) after that.” Is this enough for a sexual harassment claim? [Mireault v. Northeast Motel Assocs., LP, 20 Mass. L. Rep. 614; 2006 Mass. Super. LEXIS 65 (2006).]

7.A female employee has an operation on her breast, and when she returns to work, a male employee “jokingly” asks to see the scar. Actionable sexual harassment? [Keziah v. W. M. Brown Son, Inc., 683 F. Supp. 542 (W.D.N.C. 1988).]

8.Joan, a female manager, asks Margaret, one of her subordinates, out on a date. When Margaret refuses, Joan becomes mean to her at work and rates Margaret’s work poorly on her next evaluation. Margaret wants to bring a sexual harassment claim but feels she cannot do so since her boss is female. Is Margaret correct?

9.A truck driver trainer sexually harassed a trainee and she brought suit for sexual harassment. The trainer claimed to have power over the trainee, but in reality, the trainer was not a supervisory employee. Is it possible for her to make her claim of quid pro quo sexual harassment if the trainer actually is not a supervisor? [Vernarsky v. Covenant Transport, Inc., 2003 U.S. Dist. LEXIS 18330 (E.D. Tenn. 2003).]page 461

10.Trudy comes to Pat, her supervisor, and tells her that Jack has been sexually harassing her by making suggestive remarks, comments, and jokes; constantly asking her for dates; and using every available opportunity to touch her. Pat has been friends with Jack for a long time and can’t imagine Jack would do such a thing. Pat is hesitant to move on Trudy’s complaint. What should Pat do?

End Notes

1. Mandell, Nina, “St. Louis Woman Awarded $95 Million after Former Boss Allegedly Masturbated on Her,” The New York Daily News (June 10, 2011), http://articles.nydailynews.com/2011-06-10/news/29663292_1_verdict-harassment-runaway-jury.

2. Newsweek (July 26, 2010), p. 16.

3. Talbot, Margaret, “Fox News and the Repercussions of Sexual Harassment,” The New Yorker (August 19, 2016), http://www.newyorker.com/news/daily-comment/fox-news-and-the-repercussions-of-sexual-harassment.

4. Steel, Emily, and Michael S. Schmidt, “Fox News Settled Sexual Harassment Allegations Against Bill O’Reilly, Documents Show,” The New York Times (January 10, 2017), https://www.nytimes.com/2017/01/10/business/media/bill-oreilly-sexual-harassment-fox-news-juliet-huddy.html

5. Campbell, Fred, “The Real Story Behind the FCC Sex Scandal,” Forbes, (October 20, 2016), https://www.forbes.com/sites/fredcampbell/2016/10/20/the-real-story-behind-the-fcc-sex-scandal/#6fd17514498c

6. Levine, Matt, “Successful Algorithms and Rude CFOs,” Bloomberg View (August 11, 2016), https://www.bloomberg.com/view/articles/2016-08-11/successful-algorithms-and-rude-cfos.

7. “Final Judgment in EEOC Sexual Harassment Case Against Custom Companies Tops $1.1M: Federal Judge Cites Involvement of Top Management in Permitting Harassment and in Retaliating Against Victims,” EEOC press release (March 8, 2007); and EEOC v. Custom Companies, Inc., et al., Nos. 02-C-3768, 03-C2293, Mem. Op. & Order (N.D. Ill. March 8, 2007).

8. “Lawyer Sues Ex-firm for Naked Male Retreat,” News.com (September 28, 2010), http://www.news.com.au/business/business-smarts/lawyer-sues-ex-firm-for-naked-male-retreat/story-e6frfm9r-1225930875532.

9. “Woman Spanked at Work Awarded $1.7M: Alarm Company Employee Found Camaraderie-Building Exercise Humiliating,” MSNBC (April 28, 2006), http://www.msnbc.msn.com/id/12534543/ns/us_news-life/.

10. Loomis, Tamara, “Record $5.5M Accord Reached in Doctor Harass Case,” Law.com (April 10, 2003), http://www.law.com/jsp/article.jsp?id=900005534973&slreturn=1&hbxlogin=1.

11. Seward, Christopher, “Ex Delta Pilot Files Sex Discrimination Suit,” The Atlanta Journal & Constitution (August 23, 2013), http://www.ajc.com/news/business/ex-delta-pilot-files-sex-discrimination-suit/nZZsz/.

12. Abramson, Alana, “Ala. Student Sues Best Buy’s Geek Squad after Circulation of Nude Photos,” ABC News (August 14, 2013), http://news.yahoo.com/ala-student-claims-best-buy-circulated-nude-photos-033351982–abc-news-topstories.html;_ylt=A0LEV1kxvPtScG4AIRRXNyoA;_ylu=X3oDMTEzOWFyOXZ1BHNlYwNzcgRwb3MDMwRjb2xvA2JmMQR2dGlkA1ZJUDI4MF8x.page 462

13. “Film producer ordered to pay $3 million in sex case,” Today.com Entertainment (August 27, 2011), http://entnews.today.com/_news/2011/08/27/7494695-film-producer-ordered-to-pay-3-million-in-sex-case.

14. Dolnick, Sam, and Danny Hakim, “Women Employed by New York Lawmaker Describe Sexually Hostile Office,” The New York Times (August 29, 2012), http://www.nytimes.com/2012/08/30/nyregion/women-employed-by-vito-j-lopez-describe-sexually-hostile-office.html?pagewanted=all&_r=0.

15. “Reverse Sexual Harassment under Investigation by New York Civil Rights Violation Lawyer Following Dog Trainer’s Accusations,” EIN Presswire (September 9, 2011), http://www.einpresswire.com/247pr/233963.

16. “Burger King Franchise Pays $400,000 for Alleged Sexual Harassment of Teens,” EEOC press release (December 6, 2004), http://www.eeoc.gov/eeoc/newsroom/release/12-6-04b.cfm.

17. Timmins, Annmarie, “Judge’s Victims Feel Violated by System: ‘Public Support for Him Is Cronyism,’ They Say,” The Concord Monitor (January 8, 2005), http://www.concordmonitor.com/article/judges-victims-feel-violated-by-system.

18. “Penis Pump Judge Gets 4-Year Jail Term,” USA Today (August 18, 2006). http://www.usatoday.com/news/nation/2006-08-18-judge-sentenced_x.htm.

19. Keck, William, “The Time Is Right for Barker,” USA Today (May 14, 2007), http://www.usatoday.com/life/people/2007-05-13-bob-barker_N.htm.

20. “Arnold Apologizes for ‘Bad Behavior,’” Fox News (October 3, 2003), http://www.foxnews.com/story/0,2933,98883,00.html.

21. Johnson, Lauren, “O’Reilly Settles Sex Harass Suit: Lawyer for Fox News Announces Settlement with Fox Producer,” CBS News (October 28, 2004), http://www.cbsnews.com/stories/2004/10/20/entertainment/main650282.shtml.

22. 139 F.R.D. 657 (D. Minn. 1991).

23. Hechler, David, “A White Buffalo,” National Law Journal (March 28, 2003).

24. Clara Bingham and Laura Leedy Gansler, Class Action: The Story of Lois Jenson and the Landmark Case That Changed Sexual Harassment Law (New York: Doubleday, 2002).

25. Chapman, Parke, “C B Richard Ellis Denies Sexual Harassment Claims,” National Real Estate Investor (November 1, 2004), http://nreionline.com/mag/real_estate_cb_richard_ellis_16/; and “Settlement: Real Estate Brokerage Harassment,” lawyersand settlements.com (October 16, 2007), http://www.lawyersandsettlements.com/settlements/09555/real-estate-brokerage-harassment.html.

26. “EEOC Sues Red Lobster for Sexual Harassment,” EEOC press release (September 30, 2013), http://www1.eeoc.gov//eeoc/newsroom/release/9-30-13f.cfm?renderforprint=1.

27. Sachdev, Ameet, “After nearly 10 years, sex-harassment suit may finally be settled: Buffalo Grove–based International Profit Associates admits pervasive sexual harassment in the workplace,” Chicago Law (February 22, 2011), http://articles.chicagotribune.com/2011-02-22/business/ct-biz-0222-chicago-law-20110222_1_eeoc-sexual-harassment-individual-class-members.

28. “Lakemont Homes to Pay $267,000 to Settle EEOC Sexual Harassment, Retaliation Suit,” EEOC press release (November 30, 2011), http//www1.eeoc.gov//eeoc/newsroom/release/11-30-11.cfm?r.

29. “MMS Resources/Merchant Management Systems to Pay $365,000 to Settle EEOC Sex Harassment Suit,” EEOC press release (November 21, 2011), http://www.eeoc.gov/eeoc/newsroom/release/11-21-11a.cfm.page 463

30. “Dial Settles Sexual Harassment Lawsuit for $10M,” HR.BLR.com (May 1, 2003), http://hr.blr.com/HR-news/Discrimination/Sexual-Harassment/Dial-Settles-Sexual-Harassment-Lawsuit-for-10M/.

31. Mulkern, Anne C., “Mint Chief: No Tolerance for Sexual Harassment,” The Carlsbad Current-Argus (September 15, 2006), http://www.currentargus.com/ci_4339904.

32. Keller, Jared, “Nude Photo Scandal Reveals Marines’ Culture of Misogyny,” Newsweek (March 16, 2017), http://www.newsweek.com/nude-photo-scandal-exposes-marines-culture-misogyny-569104

33. Ellison, Jesse, “The Military’s Secret Shame,” Newsweek (April 11, 2011), p. 40.

34. “EEOC Sues Kraft Foods of North America for Same Sex Harassment of Men,” EEOC press release (October 25, 2002), http://www.eeoc.gov/eeoc/newsroom/release/10-25-02.cfm.

35. Ellison v. Brady, 924 F.2d 872, 881, n.15 (9th Cir. 1991), quoting from the MSPB update study, U.S. Merit Systems Protection Board, Sexual Harassment in the Federal Government: An Update (Washington, DC: U.S. Government Printing Office, 1988), p. 42.

36. 760 F. Supp. 1486, 1506–07 (M.D. Fla. 1991).

37. “EEOC Select Task Force on the Study of Harassment in the Workplace," EEOC (June 2016), https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf.

38. Notice that we do not use the term “sexual favors.” It hardly makes sense to do so when the activity is unwanted. Making the “request” sound more palatable only masks the truth. We choose to simply call it what it is: a request for sexual activity of some kind.

39. Mattioli, Dana, “More Men Make Harassment Claims,” The Wall Street Journal (March 23, 2010), http://online.wsj.com/article/SB10001424052748704117304575137881438719028.html.

40. 523 U.S. 75 (1998).

41. No. 11-556, issued June 24, 2013, http://www.supremecourt.gov/opinions/12pdf/11-556_11o2.pdf.

42. No. 12-484, issued June 24, 2013, http://www.supremecourt.gov/opinions/12pdf/12-484_o759.pdf.

43. 673 F. Supp (1458 E.D. Mo 1987).

44. Heathfield, Susan M., “The Scoop on Love Contracts: Do Dating Co-workers Need to Sign Love Contracts?” http://humanresources.about.com/od/glossaryl/qt/love_contract.htm.

45. 672 F. Supp. 1205 (D.R.I. 1991).

46. 510 U.S. 17 (1993).

47. 523 U.S. 575 (1998).

48. 895 F.2d 1469 (3d Cir. 1990).

49. 542 U.S. 129 (2004).

50. 298 F. Supp. 2d 364 (E.D. Va 2004).

Faragher v. City of Boca Raton 524 U.S. 775 (1998)

A former city lifeguard sued the city under Title VII for sexual harassment based on the conduct of her supervisors. The Supreme Court held that an employer is subject to vicarious liability under Title VII for actionable discrimination caused by a supervisor, but the employer may raise an affirmative defense that looks to the reasonableness of the employer’s conduct in seeking to prevent and correct harassing conduct and to the reasonableness of the employee’s conduct in seeking to avoid harm. The Court held that the employer was vicariously liable here because it failed to exercise reasonable care to prevent harassing behavior.

This case calls for identification of the circumstances under which an employer may be held liable under Title VII of the Civil Rights Act for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination. We hold that an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of a plaintiff victim.

Souter, J.

***

Between 1985 and 1990, while attending college, petitioner Beth Ann Faragher worked part time and during the summers as an ocean lifeguard for the Marine Safety Section of the Parks and Recreation Department of respondent, the City of Boca Raton, Florida (City). During this period, Faragher’s immediate supervisors were Bill Terry, David Silverman, and Robert Gordon. In June 1990, Faragher resigned. In 1992, Faragher brought an action page 470against Terry, Silverman, and the City, asserting claims under Title VII, and Florida law. The complaint alleged that Terry and Silverman were agents of the City, and that their conduct created a “sexually hostile atmosphere” that amounted to discrimination in the “terms, conditions, and privileges” of her employment at the beach by repeatedly subjecting Faragher and other female lifeguards to “uninvited and offensive touching,” by making lewd remarks, and by speaking of women in offensive terms.

Throughout Faragher’s employment with the City, Terry served as Chief of the Marine Safety Division, with authority to hire new lifeguards (subject to the approval of higher management), to supervise all aspects of the lifeguards’ work assignments, to engage in counseling, to deliver oral reprimands, and to make a record of any such discipline. Silverman and Gordon were captains and responsible for making the lifeguards’ daily assignments, and for supervising their work and fitness training. The lifeguards and supervisors were stationed at the city beach. The lifeguards had no significant contact with higher city officials like the Recreation Superintendent.

In February 1986, the City adopted a sexual harassment policy, which it stated in a memorandum from the City Manager addressed to all employees. In May 1990, the City revised the policy and reissued a statement of it. Although the City may actually have circulated the memos and statements to some employees, it completely failed to disseminate its policy among employees of the Marine Safety Section, with the result that Terry, Silverman, Gordon, and many lifeguards were unaware of it.

Faragher did not complain to higher management about Terry or Silverman. In April 1990, however, two months before Faragher’s resignation, Nancy Ewanchew, a former lifeguard, wrote to Richard Bender, the City’s Personnel Director, complaining that Terry and Silverman had harassed her and other female lifeguards. Following investigation of this complaint, the City found that Terry and Silverman had behaved improperly, reprimanded them, and required them to choose between a suspension without pay or the forfeiture of annual leave.

Since our decision in Meritor, Courts of Appeals have struggled to derive manageable standards to govern employer liability for hostile environment harassment perpetrated by supervisory employees. While indicating the substantive contours of the hostile environments forbidden by Title VII, our cases have established few definite rules for determining when an employer will be liable for a discriminatory environment that is otherwise actionably abusive.

A “master is subject to liability for the torts of his servants committed while acting in the scope of their employment.” Restatement § 219(1). This doctrine has traditionally defined the “scope of employment” as including conduct “of the kind [a servant] is employed to perform,” occurring “substantially within the authorized time and space limits,” and “actuated, at least in part, by a purpose to serve the master,” but as excluding an intentional use of force “unexpectable by the master.”

A justification for holding the offensive behavior within the scope of Terry’s and Silverman’s employment was well put in Judge Barkett’s dissent: “[A] pervasively hostile work environment of sexual harassment is never (one would hope) authorized, but the supervisor is clearly charged with maintaining a productive, safe work environment. The supervisor directs and controls the conduct of the employees, and the manner of doing so may inure to the employer’s benefit or detriment, including subjecting the employer to Title VII liability.”

It is by now well recognized that hostile environment sexual harassment by supervisors (and, for that matter, co-employees) is a persistent problem in the workplace. An employer can, in a general sense, reasonably anticipate the possibility of such conduct occurring in its workplace, and one might justify the assignment of the burden of the untoward behavior to the employer as one of the costs of doing business, to be charged to the enterprise rather than the victim. As noted, developments like this occur from time to time in the law of agency.

We agree with Faragher that in implementing Title VII it makes sense to hold an employer vicariously liable for some tortious conduct of a supervisor made possible by abuse of his supervisory authority. The agency relationship affords contact with an employee subjected to a supervisor’s sexual harassment, and the victim may well be reluctant to accept the risks of blowing the whistle on a superior. When a person with supervisory authority discriminates in the terms and conditions of subordinates’ employment, his actions necessarily draw upon his superior position over the people who report to him, or those under them, whereas an employee generally cannot check a supervisor’s abusive conduct the same way that she might deal with abuse from a co-worker. When a fellow employee harasses, the victim can walk away or tell the offender where to go, but it may be difficult to offer such responses to a supervisor, whose “power to supervise—[which may be] to hire and fire, and to set work schedules and pay rates—does not disappear . . . when he chooses to harass through insults and offensive gestures rather than page 471directly with threats of firing or promises of promotion.” Recognition of employer liability when discriminatory misuse of supervisory authority alters the terms and conditions of a victim’s employment is underscored by the fact that the employer has a greater opportunity to guard against misconduct by supervisors than by common workers; employers have greater opportunity and incentive to screen them, train them, and monitor their performance.

In order to accommodate the principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Burlington Industries, Inc. v. Ellerth, 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. 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.

While proof that an employer had promulgated an antiharassment 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 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. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Applying these rules here, it is undisputed that these supervisors “were granted virtually unchecked authority” over their subordinates, “directly controll[ing] and supervis[ing] all aspects of [Faragher’s] day-to-day activities.” It is also clear that Faragher and her colleagues were “completely isolated from the City’s higher management.”

While the City would have an opportunity to raise an affirmative defense if there were any serious prospect of its presenting one, it appears from the record that any such avenue is closed. The City entirely failed to disseminate its policy against sexual harassment among the beach employees and its officials made no attempt to keep track of the conduct of supervisors like Terry and Silverman. The City’s policy did not include any assurance that the harassing supervisors could be bypassed in registering complaints. Under such circumstances, we hold as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors’ harassing conduct. Unlike the employer of a small workforce, who might expect that sufficient care to prevent tortious behavior could be exercised informally, those responsible for city operations could not reasonably have thought that precautions against hostile environments in any one of many departments in far-flung locations could be effective without communicating some formal policy against harassment, with a sensible complaint procedure. REVERSED and REMANDED.

Case Questions

1.How could the city have avoided this outcome? Explain.

2.Do you think that it would have made sense for the city to consider the particulars of the circumstances here, such as that these were lifeguards, in a remote location, who by the nature of the job would be dressed in fairly little clothing, and who, because of the environment (the beach and recreational facilities) might need a different approach to sexual harassment than, say, office employees? Explain.

3.What do you think of the Court’s affirmative defense given to employers and employees? What are the pros and cons?

Bennett-Alexander, Dawn. Employment Law for Business, 9th Edition. McGraw-Hill Higher Education, 20180123. VitalBook file.

The citation provided is a guideline. Please check each citation for accuracy before use.