Publications

EMPLOYMENT LAW

TITLE VII and SEXUAL HARASSMENT CLAIMS

Presented By:

William S. Sutton

Section I

TITLE VII - A GENERAL OUTLINE

Intended Purpose

Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq.) prohibits covered employers from discriminating based on:

1. Race;
2. Color;
3. Sex;
4. Religion; and
5. National Origin

Title VII’s prohibition against sexual discrimination includes both sexual harassment and pregnancy discrimination. The term "discriminate" means to make a distinction, or to treat persons differently based on their race, color, national origin, sex, or religion. The pertinent statute makes it an unlawful employment practice for a covered employer "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" based on race, color, sex, religion, or national origin. 42 U.S.C. §2000e-2(a)(1). It is also unlawful for an employer "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee" based on race, color, sex, religion, or national origin. 42 U.S.C. §2000e-2(a)(2). Like most other laws prohibiting employment discrimination, Title VII also prohibits retaliation. 42 U.S.C. §2000e-3 contains the specific statutory language prohibiting retaliation against those who oppose discrimination or who participate in a Title VII process.

Typically, the charging party in a Title VII claim will be a member of a protected group, who claims to be aggrieved as a result of an adverse employment decision or practice. The allegation will be that an employer, covered by Title VII, has made an employment decision based on prohibited stereo-typical or biased thinking about the employee’s membership in one of the five (5) groups protected by Title VII. Since the protections provided by Title VII are statutory in nature, an understanding of the underlying statutory framework is necessary.

Forms of Discrimination

Discrimination may take one of several forms. The most common forms of discrimination can be described as disparate treatment, disparate impact, mixed motive discrimination, retaliation, and the creation of a hostile work environment.

Disparate Treatment

Disparate treatment is intentional discrimination. Where employment decisions are motivated by race, color, sex, etc., disparate treatment exists. The key element needed to show disparate treatment is that members of a protected group are treated differently from non-members. A "but for" test is often applied. "But for" membership in a protected group, the employee would not have been the object of the adverse employment action. With disparate treatment, the motivating factor behind the employment action is the employee’s membership in the protected group.

Disparate Impact

Discrimination can also occur as the result of the disparate impact of a neutral employment rule. For example, an employer may require a high school diploma for employment in a specified geographic area where the effect of the diploma requirement is to exclude minorities from employment at a rate greater than the rate at which non-minorities are excluded. Such employment requirements will typically only be upheld where it can be established that the requirement at issue is necessary for the particular job. Another example would be to create a job requirement that all employees must be able to lift some minimal amount of weight. An employment requirement of this nature might very well exclude females from consideration for employment at a rate greater than males. This employment requirement would only be upheld if the ability to lift the minimum amount of weight was a necessary element of the job, and some reasonable accommodation was not available.

Mixed Motive

Mixed motive discrimination occurs where membership in the protected group is shown, by the employee, to have been "a reason" for the employment action being challenged, if not the sole reason. Cases in which mixed motive discrimination is at issue can be defended where the employer shows that the same employment decision would have been made without regard to the employee’s membership in a protected group. In other words, cases in which mixed motive discrimination is at issue can be defended where there was some legitimate non-discriminatory reason, which was the prevailing or predominant reason for the challenged employment action. Mixed motive discrimination is defined and considered at 42 U. S. C. §2000e-5(g). See also, Foster v. University of Arkansas, 938 F.2d 111, 114 (7^th Cir. 1991) where it was held that to establish Title VII liability under a mixed motive theory, the plaintiff must show that a protected status, such as race, played a motivating factor in the adverse employment decision at issue. If the plaintiff makes a showing that race or some other protected status played a motivating part in the adverse employment decision, the defendant (employer) may avoid liability only by showing that the same employment decision would have been made even if the protected status, i.e., race, had not been considered. This may be done by introducing evidence of the employer’s probable decision in the absence of an illegitimate motive.

Where membership in a protected group is shown to have been "a cause" for the employment action being challenged, the issue of liability under Title VII, but not damages, is established. Despite the finding of liability in mixed motive cases, a defense can still be mounted on the issue of damages. Compensatory damages are not available in "mixed motive" cases where the employer shows that the same employment result would have occurred even without the protected status of the employee. To establish this defense, the employer must show that even with the alleged discrimination based on the employee’s membership in a protected group, the same employment action would have taken place because of a valid, non-discriminatory reason. Although compensatory damages are not available in a mixed motive case, an award of attorney’s fees may still be granted where the employee can show that some form of unlawful discrimination was "a cause" for the employment action.

Hostile Work Environment

A hostile work environment occurs when unwelcome conduct unreasonably interferes with an employee’s work performance or creates an intimidating work environment regardless of whether the conduct is directly tied to a job benefit or detriment. In order to establish a prima facie case of a hostile work environment, an employee must show that:

3. He belongs to a protected group;
4. He was subject to unwelcome harassment;
5. The harassment was based on his membership in a protected group;
6. The harassment was sufficiently pervasive to affect a term, condition, or privilege of employment; and
7. The employer knew or should have known about the harassment but failed to take prompt, corrective action.

While hostile work environment cases are most often based on allegations of sexual harassment, similar principles are applicable for analyzing discrimination based on race, national origin, or religion. Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986).

Retaliation

To prove retaliation, it must be shown that:

The pertinent code section is 42 U.S.C. §2000e-3(a). Title VII prohibits retaliation against a current employee, an applicant, or a former employee "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, or because he has opposed any practice made an unlawful practice by Title VII." Hazen Paper Co. v. Biggins, ____ U.S. ____ 113 S.Ct. 1701, 1706 (1993). See also, Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11^th Cir. 1986) for the proposition that a plaintiff, who is relying on retaliation, must set forth a prima facie case. To establish a prima facie case of retaliation, the plaintiff must show:

1. That he was engaged in a statutorily protected activity;
2. That the employer has taken an adverse employment action; and
3. That a causal connection exists between his participation in a statutorily protected activity in the adverse employment action taken by the employer.

To rebut a prima facie case of retaliation, the employer must show a legitimate non-discriminatory reason for the adverse employment action. Where the employer carries its burden of production, the court must then inquire as to whether or not the stated reason for the adverse employment action was a mere pretext.

Covered Employer

For the purpose of Title VII a "covered employer" is defined as a person, or legal entity, engaged in an industry affecting "commerce," who has fifteen (15) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year. 42 U.S.C. §2000e(a). Labor unions and employment agencies are also subject to Title VII, as are local, state and municipal governments.

General agency principles are applied in deciding whether or not an employer has fifteen (15) or more employees. For example, courts consider whether or not the employer controls the time, method, and manner of work. If so, an employment relationship is typically found. If not, an independent contractor may exist. Independent contractors are not "employees" within the meaning of Title VII. With regard to part time employees, regular part time employees are considered "employees" under Title VII. Temporary part time employees are not considered "employees."

To reach the fifteen (15) employee minimum, separate entities, including corporations, can be aggregated under certain circumstances. For example, where there is common ownership, common control, shared facilities, shared employees, shared managers, central control of labor relationships, etc., separate employees may be aggregated for the purpose of reaching the fifteen (15) employee level.

Successor Liability

Successor liability may occur where one covered employer, such as a corporation, purchases another covered employer, against whom a Title VII claim has been made. There is, however, typically a requirement that the person or entity making the purchase have knowledge of the pending EEOC claim. In addition, if, by the purchase agreement, the successor covered employer agrees to assume the debts and liabilities of the entity being purchased, there may be successor liability under Title VII. A straight asset purchase without the assumption of liabilities and contingencies will typically not result in successor liability.

Individual Liability

While a supervisor is considered an "employer" under Title VII for the purpose of creating liability, there is no individual liability for the purpose of paying damages. As a consequence, a supervisor may be the cause of an employer’s liability under Title VII but will not be liable to pay damages, individually, to the aggrieved employee.

Procedure

When an employee believes he or she has been the subject of unlawful discrimination under Title VII, a charge of discrimination must be filed with EEOC within one hundred and eighty (180) days of the alleged discriminatory act. Typically, a written charge of discrimination is required. In fact, the EEOC supplies a form, which is most often used.

Conciliation Investigation

Once a charge of discrimination has been filed, EEOC has one hundred and eighty (180) days to conduct an administrative investigation and to return its findings. EEOC findings are based on "reasonable" cause. Typically, EEOC will find:

1. Evidence of discrimination;
2. No evidence of discrimination; or
3. Return a finding that it has not had sufficient time to investigate the claim.

Right To Sue Notice

Where the EEOC has not otherwise issued a Right to Sue notice after one hundred and eighty (180) days, the charging party/employee is entitled to demand and receive a Right to Sue notice from EEOC. The EEOC will issue a Right to Sue notice whether or not there is a corresponding finding that evidence of discrimination exists. The charging party is then entitled to file suit in the appropriate United States District Court unless EEOC has decided to bring an action in its own name.

Once a Right to Sue notice has been received, the charging party/employee has ninety (90) days in which to bring an action in the appropriate United States District Court. This ninety (90) days begins to run from the actual receipt of the Right to Sue notice. This ninety-day filing requirement acts as a statute of limitations where a complaint is not filed in a timely fashion.

Disparate Treatment and Hostile Work Environment

To discriminate against an employee means to treat the employee differently as far as the terms and conditions of his employment. This can range from disparate treatment to the creation of a hostile work environment based on race, color, sex, religion, or national origin. The test is whether or not the employer has applied different standards of treatment to similarly qualified persons, who are not within the protected group. For example, where racial discrimination is alleged by a black applicant or employee, the issue will be whether or not the employer has applied the same, or different, employment standards to white applicants or employees.

Evidence of Discrimination

Direct evidence can be relied upon to showdiscrimination. In the absence of direct evidence, circumstantial evidence is appropriate. To establish a cause of action for disparate treatment based upon circumstantial proof, the charging party must show:

1. That he was a member of a group protected by Title VII;
2. That he was qualified for his position, or for a position for which he was applying;
3. That he suffered an adverse employment action; and
4. That applicants or employees, who were not a member of his protected group, were treated differently by the employer.

These principles were established in a decision by the United States Supreme Court in McDonnell Douglas v. Green, 411 U. S. 792, 802, 93 S.Ct. 1817 (1973). Once the above elements have been established, a prima facie case (or an inference of) discrimination exists. It is then up to the employer to present evidence of a legitimate reason for the adverse employment action. This is a burden of production, and not a burden of proof. At all times, the burden of proof remains upon the charging employee. If the employer satisfies its burden of production, and shows that the adverse employment action was based on a legitimate, non-discriminatory reason, the charging employee must then show that the employer’s stated non-discriminatory reason for the employment action was a mere pretext.

To prove disparate treatment under Title VII, the employee must show that the employer acted with discriminatory purpose. Where direct evidence is not available, the three-step procedure set forth inMcDonnell Douglas Corp. v. Green is available. The ultimate question in a disparate treatment case is not whether the employee established a prima facie case or demonstrated pretext, but whether the employee can prove by a preponderance of the evidence that the employer intentionally discriminated against him. A showing of pretext by the employee, without, more will not support a finding of discrimination or a judgment. Likewise, a simple finding of the employer did not rely on its proffered reason for the adverse employment action will not suffice to establish Title VII liability without a further showing that the employer relied upon the employee’s membership in a protected group in making its decision. What all of this means is that a mere showing of pretext by the employee is not sufficient to obtain summary judgment. Instead, the employer is still entitled to a jury trial on the ultimate issue . . . whether or not there was intentional discrimination.

Misconduct

A plaintiff fired for misconduct makes out a prima facie case for a discriminatory discharge if he shows that:

Nix v. WLYC Radio/Rahall Communications, 738 F.2d 1181, 1184 (11^th Cir. 1984).

As with other disparate treatment cases, once an employee has established a prima facie case of a discriminatory discharge, the burden of production shifts to the employer to produce evidence of a valid, non-discriminatory reason for the discharge. As was stated earlier, this is a burden of production and not a burden of proof. At all times, the ultimate burden of proof that the employer discriminated against the employee remains with the employee. Assuming the employer carries its burden of production, the presumption of a discriminatory discharge raised by the prima facie case is rebutted. The employee must then establish, by a preponderance of the evidence, that the employer’s stated non-discriminatory reason for his discharge was a mere pretext. Otherwise, summary judgment may be appropriate for the employer.

Remedies

Several remedies are available under Title VII. Available remedies are:

1. Injunctive relief;
2. Reinstatement;
3. Back pay;
4. Front pay;
5. Compensatory damages;
6. Punitive damages; and
7. Attorney’s fees.

Compensatory damages and punitive damages are only available in cases of disparate treatment where intentional discrimination is shown. The only remedies available in disparate impact cases are injunctive relief, reinstatement, back pay, front pay, and attorney’s fees. Where reinstatement is ordered, front pay is not available. To recover attorney’s fees, the employee must prevail.

Statutory Caps

Statutory caps limits exists for combined awards of front pay, punitive damages, and compensatory damages. The caps are based upon the number of employees employed by the employer against whom the charge of discrimination has been made. The caps are as follows:

1. For more than fourteen (14) and less than one hundred and one (101) employees in each of twenty (20) or more calendar weeks in the current or preceding year the cap is $50,000;
2. For more than one hundred (100) but fewer than two hundred and one (201) employees, the cap is $100,000;
3. For more than two hundred (200) employees but fewer than five hundred and one (501) employees, the cap is $200,000; and
4. For an employer with more than five hundred (500) employees, the cap is $300,000.

Separate corporate entities or employers, may be combined for the purpose of determining which of the above caps is appropriate. Some of the factors to be considered are:

1. Common ownership;
2. Common control;
3. Shared facilities;
4. Shared employees;
5. Shared managers; and
6. Central control of labor relations.

Section II

TITLE VII - SEXUAL HARASSMENT

Sexual Harassment

While specifically not mentioned in Title VII, sexual harassment can constitute sexual discrimination and violates Title VII. In the employment context, sexual harassment refers to unwelcome sexual advances imposed upon an employee by someone of authority. Such unwanted sexual advances may come in the form of sexual jokes, repeated offensive comments or looks, intentional body contact, indecent propositions, or forced sexual relations. Historically, sexual harassment claims were brought by way of a state cause of action for the intentional infliction of emotional distress or some related tort. This changed, however, in 1986 with the Supreme Court’s decision in Meritor Savings Bank v. Vincent, where in the U. S. Supreme Court held that sexual harassment claims could be brought under Title VII as a form of discrimination based on sex. In its decision, the Supreme Court adopted earlier EEOC guidelines which had placed sexual harassment within the various types of activity prohibited in the workplace. Those types of activity included "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." The EEOC guidelines provided that prohibited forms of sexual misconduct could constitute "sexual harassment, whether or not it is directly limited to the grant or denial of an economic quid pro quo where such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment. Meritor Savings Bank v. Vincent, 477 U. S. 57, 65, 106 S.Ct. 2399 (1986).

In the Supreme Court’s view, the issue was whether or not the alleged misconduct was "unwelcome." Thus, if an improper and welcomed sexual advance was made, and the victim voluntarily responded to it and engaged in some sexual conduct, the employer could still be liable for the unwelcome initial conduct. In other words, the employee’svoluntary participation in the ultimate or sexual relationship did not bar a cause of action so long as the initial conduct had been unwelcome.

Sexual harassment claims typically fall into one of two categories; quid pro quo, or hostile work environment. Quid pro quo harassment occurs when an employee or prospective employee is forced to choose between an employment detriment and submitting to sexual demands. To establish a prima facie case of quid pro quo sexual harassment, the plaintiff must show:

7. That she is a member of a protected class;
8. That she was the subject of unwelcome sexual harassment in the form of sexual advances or a request for sexual favors;
9. That the unwelcome harassment or advance was based on sex;
10. That submission to the unwelcome advance was an express or implied condition for receiving job benefits or that the refusal to submit to a supervisor’s sexual demands resulted in a tangible job detriment; and
11. That the employer was responsible for the supervisor’s conduct.

Sexual harassment occurs when unwelcome conduct of a sexual nature unreasonably interferes with an employee’s work performance or creates an intimidating work environment, regardless of whether the conduct is directly tied to a job benefit or detriment. In order to establish a prima facie case, an employee must prove:

1. That she belongs to a protected group;
2. That she was the subject of unwelcome sexual harassment;
3. That the harassment was based on sex;
4. That the harassment was sufficiently pervasive to effect a term, condition, or privilege of employment; and
5. That the employer knew, or should have known, about the harassment and failed to take prompt, corrective action.

Questions to be asked in sexual harassment claims are:

1. Was the verbal or physical conduct of a sexual nature;
2. If so, was it unwelcome; and
3. Was there a quid pro quo for the sexual conduct and/or a hostile work environment.

EEOC guidelines prohibit conduct constituting:

1. Sexual advances;
2. Request for sexual favors;
3. Any verbal conduct of a sexual nature;
4. Any physical conduct of a sexual nature;
5. Written or visual sexual conduct; and
6. Vulgar, crude and sexist language.

In determining whether or not the alleged misconduct was so pervasive as to create a hostile work environment a two-tiered standard is applied. First, whether or not the alleged misconduct would have been offensive to the average reasonable woman, and second, whether the alleged misconduct was, in fact, offensive to the charging party.

Section III

TITLE VII - EMPLOYER’S LIABILITY SINCE

FARAGHER

SEXUAL HARASSMENT AND

VICARIOUS LIABILITY AFTER

FARAGHER AND ELLERTH

Background

For sometime now, different standards have been applied by the various federal circuit appellate courts in deciding whether or not an employer can be held vicariously liable for the sexual harassment of an employee where the offending employee holds a supervisory role. Some circuits have taken an almost strict liability position, and have held that where the offending employee holds a supervisory position vis-á-vis the victim employee, the employer should be held vicariously liable even where the employer presents evidence that it has not been negligent, or otherwise at fault. Other circuits have held that the employer can only be held vicariously liable where the victim employee presents evidence that the employer has acted negligently (with regard to the sexual harassment), or where it has been demonstrated that the employer knew about, or should have known about, the harassment. These differences in approach have now seemingly been resolved by the United States Supreme Court in two recent decisions. Those decisions were Faragher v. City of Boca Raton, 523 U.S. ____ 118 S.Ct. 2275 (1998) and Burlington Industries v. Ellerth, 523 U.S. _____ 118 S.Ct. 2257 (1998).

The Decisions

The legal issue in Faragher dealt with the City of Boca Raton’s liability for acts of alleged sexual harassment by two life guards, who held supervisory roles over other life guards, including females. The issue in Burlington Industries v. Ellerth dealt more with whether or not a distinction should exist between sexual harassment claims based on a hostile work environment (where the offending employee is a supervisor) and quid pro quo sexual harassment claims.

In examining the issue of vicarious liability, the Supreme Court used as a backdrop its earlier decision in Meritor Savings Bank SFB v. Vincent, 477 U.S. 57 (1986). In Meritor, the Supreme Court held that Title VII places limits on an employer’s responsibility for the creation of a discriminatory environment by a supervisor. "An employer is not always automatically liable for sexual harassment by their supervisors."Faragher at ___ quoting Faragher. This holding in Meritor left enough wiggle room by stating that "an employer is not always automatically liable" so that the various federal circuits could then come down on either side of the issue of whether employers should be held vicariously liable for sexual harassment by their supervisory employees. Some circuits, including the Eleventh Circuit Court of Appeals ( which includes Georgia) were reluctant to impose vicarious liability on employers unless it was shown that the employer had done something to contribute to the alleged sexual harassment. Others were not so reluctant.

The sexual harassment in Faragher was pretty well undisputed as a factual matter. The only issue was whether or not the City of Boca Raton should be held vicariously liable for the creation of a hostile sexual work environment by two of its employees. The plaintiff, Beth Ann Faragher worked part-time as a lifeguard for the City of Boca Raton during the summers from 1985 through 1990. During this time, she was supervised at various times by two employees, Bill Terry and David Silverman. Both had supervisory duties and authority. For example, one or the other had authority to hire and fire lifeguards, supervise work assignments, counsel lifeguards, deliver oral reprimands, and record written documentation for any work related disciplinary actions.

Beth Ann Faragher made several factual allegations to support her contention that Bill Terry and David Silverman had created a hostile work environment. Some of the allegations were that Terry and Silverman had placed their arms around female employees including Faragher; had touched the buttocks of female employees; had made crude and demeaning references to women in general; and had commented on Faragher’s figure, using disparaging language. Based on this, both the lower courts and the Supreme Court had no problem finding that the harassment was sufficiently severe and pervasive so as to create a hostile work environment.

While the factual issues in Faragher were reasonably well settled, the legal issue was not. The legal issue was whether or not the City of Boca Raton could be held vicariously liable based on the actions of Terry and Silverman when the City argued that the alleged sexual harassment was outside the scope of Terry and Silverman’s employment and that the City had not had knowledge, either actual or constructive, of the offensive conduct. After a finding by the district court in favor of Beth Ann Faragher, the Eleventh Circuit reversed and ruled that (1) Terry and Silverman had not been acting within the scope of their employment when they engaged in the offensive conduct; (2) that Terry and Silverman had not been aided in their actions by their agency relationship with the City; and (3) that the City had not had constructive knowledge of the harassment by virtue of its pervasiveness or the fact that Beth Ann Faragher had confided in another employee ( who had some limited supervisory authority) about the alleged sexual harassment. The decision of the Eleventh Circuit was to reverse the lower court’s finding of vicarious liability. The case then went to the Supreme Court because of the difference in standards being applied by the various federal courts on the issue of an employer’s vicarious liability.

Much of the Supreme Court’s decision in Faragher is esoteric and overly concerned with the somewhat legalistic definition(s) of an agency relationship. When reading the opinion, it seems at first that the Supreme Court is creating a legal rationale for denying vicarious liability by discussing issues of control, apparent authority, notice, etc., and whether or not sexual harassment/intentional torts have traditionally been within the scope of an employee’s employment. After this discussion, and a related analysis of the differing positions taken by the various federal circuits on the issue of vicarious liability, the Supreme Court, somewhat suddenly, and without much underlying rationale, sets forth a very specific holding in favor of vicarious liability. "In order to accommodate the principle various liability for harm caused by misuse of supervisory authority, as well as Title VII’s equally basic policy of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case (Faragher) and in Burlington Industries, Inc. v. Ellerth, ante, p. ___, 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. . . No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Faragher at _____.

The Supreme Court’s holding in Faragher seems to have settled the issue of vicarious liability and to have established that an employer can be held vicariously liable in a sexual harassment case where the offending employer is the victim’s supervisor even when the employer had no knowledge of the offensive behavior and/or was not otherwise negligent or at fault. While the legal issue may now have been settled, the problems with application and/or the potential factual difficulties are far from settled.

In a somewhat unusual development, the Supreme Court entered the exact holding in Burlington Industries, Inc. v. Ellerth, which was decided on June 26, 1998. Factually, Ellerth involved a case in which the employee, Kimberly Ellerth, had refused unwelcome and threatening sexual advances made by her supervisor while employed by Burlington Industries from March, 1993 through May, 1994. Ms. Ellerth had worked as a sales person in one of Burlington’s divisions in Chicago, Illinois, and alleged that she was subjected to constant sexual harassment by her supervisor, Ted Slowik. Although Slowik was not considered an upper-level manager, he very clearly had supervisory authority and could hire, promote and fire.

The alleged sexual harassment included comments by Slowik such as "you know, Kim, I could make your life very hard or very easy at Burlington." On another occasion, Slowik expressed some reservation during a promotion interview that Ms. Ellerth was not "loose enough" and then reached over and rubbed her knee. Although Ms. Ellerth subsequently received a promotion, the decision was accompanied by a comment by Slowik that "you are gonna be out there with men who work in factories, and they certainly like women with pretty butts/legs." Ellerth subsequently resigned from her job with Burlington Industries without filing any sort of a complaint against Slowik. Ellerth had on one occasion told Slowik that a comment he had made was inappropriate. Ellerth’s decision to resign was prompted by a comment from her immediate supervisor. Approximately three weeks after she resigned, Ellerth sent a letter to Burlington Industries explaining that she had resigned because of Slowik’s behavior.

The legal issue in Ellerth was again whether or not an employer should be held vicariously liable for sexual harassment by a supervisory employee even without a showing that the employee was at fault. The Court also considered whether or not vicarious liability could be imposed where quid pro quo threats had been made but were left unfulfilled. "We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate’s term or conditions of employment, based on sex, but does not fulfill the threat." Ellerth at p. ____.

Because Slowik’s implicit and/or explicit threats to alter the terms and conditions of Ellerth’s employment, based on sex, had not been fulfilled both the Seventh Court of Appeals and the Supreme Court found no quid pro quo sexual harassment. For quid pro quo harassment to exist under Title VII, the threats of adverse job consequences, etc., based on sex must be fulfilled. Otherwise, the cause of action falls to the creation of a hostile work environment, which requires a showing that the harassment was severe and pervasive. Although this was a fairly clear distinction before Ellerth, and one around which significant evidentiary issues revolved, the distinction between quid pro quo sexual harassment and hostile work place sexual harassment may no longer carry much significance, at least where the offending employee is a supervisor. This is because vicarious liability will now be imposed on employers even without a showing of quid pro quo harassment. Even the Supreme Court, in Ellerth, seems to be saying that the issue is not whether the threats to alter the terms and conditions of employment, based on sex, have been fulfilled or not, but whether the employer should be held vicariously liable. With the decision in Faragher it will be much easier to hold employers vicariously liable for sexual harassment by their employees, who hold supervisory authority.

Again, the Supreme Court in Ellerth goes through a rather esoteric analysis of agency law, before holding that "[A]n 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..." With this holding, a technical distinction still exists between quid pro quo sexual harassment and hostile work environment sexual harassment, but the distinction is not as significant from an evidentiary standpoint since vicarious liability can be found in either situation.

In other words, where the offending employee is a supervisor, it will no longer be necessary for the plaintiff (victim) to show quid pro quo sexual harassment to impose vicarious liability on the employer; nor will it be necessary to show that the employer knew, or should have known, about the harassment. Instead, the employer will now be held vicariously liable anytime it is shown that the sexual harassment was perpetrated by an employee with supervisory responsibility or job authority.

Future

With the decisions in Faragher and Ellerth, there seems to have been a change in the level of the playing field. This is true, at least, in those federal circuits, such as the Eleventh, which were previously slow to hold employers liable for alleged sexual harassment by employees, even where the employees held supervisory job responsibilities. This change will presumably mean that it will become much more difficult for employers to obtain summary judgment based on arguments that the offensive conduct was outside the scope of the supervisor’s employment or that they (the employer) did not have notice. While Faragher does set forth an affirmative defense, at least where there has been no tangible job detriment, this defense will be based on fact in most cases, and will therefore go to a jury.

To prove a Title VII violation against an employer, a plaintiff will now need to show only (1) that she is a member of protected class; (2) that she has been the subject to unwelcome harassment; (3) that the harassment was based on sex; (4) that the harassment affected a term, condition or privilege of her employment; and (5) that the offending employee was a supervisor or someone with successively higher authority. "Under Title VII of the Civil Rights Act of 1964, it shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin." 42 U.S.C. §2000e-2(a)(1). See also, Faragher at .

Where the plaintiff is a female, and the offensive conduct involves sexual touching, the use of sexual language, the request of sexual favors, etc., a sufficient evidentiary basis would seem to exist to create vicarious liability assuming that the offending employee is a supervisor. In these cases, an employer will still be able to rely upon the affirmative defense created by Faragher at least in those situations where there has been no loss of a tangible benefit, etc. Other defenses may also exist. For example, there still must be a showing(s) that the sexual harassment was sufficiently severe and pervasive so as to create a sexually hostile work, and that the alleged sexual hostile work environment was both objectively and subjectively offensive.

Assuming "arguendo" the plaintiff can show that (1) she is a member of a protected class, (2) that the alleged sexual harassment was sufficiently severe and pervasive so as to create a sexually hostile work environment, (3) that the alleged sexual harassment was both objectively and subjectively offensive, (4) that the alleged sexual harassment affected a term or condition of her employment, and (5) that the perpetrator of the alleged sexual harassment was a supervisor, what is the outcome? According to Faragher the outcome is a finding of vicarious liability against the employer. The issue then becomes whether or not the employer can rely on the affirmative defense set forth in Faragher. "When no tangible employment action is taken, an defending employer may raise an affirmative defense to liability or damages, subject to proof by preponderance of the evidence. . . "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly in a sexually harassing behavior, and (b) that the plaintiff’s employee reasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher at _____.

Where the plaintiff shows the loss of a tangible job benefit or the imposition of a tangible job detriment, the above-quoted affirmative defense is not available to the employer. A tangible job detriment and/or loss of a tangible job benefit would presumably have a fairly broad definition but one which would require more than the creation of a hostile work environment. Classic examples would be loss of a raise, a demotion, termination, reassignment to a less favorable job location, etc. There is presently some issue concerning whether or not a economic effect is necessary to establish the loss of a tangible job benefit or the creation of a tangible job detriment. The outcome of this issue will necessarily await subsequent post Faragher decisions.

Another defense, which may be appropriate in some cases, will concern whether or not the offending employee is a supervisor. The language used by the Supreme Court was "a supervisor with immediate or (successively higher authority)." Faragher at ____. The Supreme Court’s language would seem to mean that anyone in the chain of command above the plaintiff could qualify as a supervisor with the immediate or successfully higher authority. Again the outcome of this issue would seemingly involve a factual analysis, which in most cases will lead to a jury trial. The issue of whether or not the offending employee was a supervisor may occasionally involve a situation where the offending employee does not have actual authority but because of some act or omission by the employer, an argument can be made that he had apparent authority. In these situations, the victim employee will argue that she reasonably believed the offending employer had sufficient authority to affect her job status, etc.

As already stated, where there has been no loss of a tangible job benefit, etc., or the imposition of a tangible job detriment, the employer will have an affirmative defense but one, which would again seemingly lead to a factual inquiry (jury trial). To establish the defense, the employer must show that "it exercised reasonable care to prevent and correct any sexually harassing behavior and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." (Emphasis added) Faragher at ______. It is important to note that both elements must be established. In other words, the employer must show not only that it acted reasonably but also that the plaintiff acted unreasonably. In these situations, the Supreme Court has directed the lower courts to consider "all the surrounding circumstances."

To establish that it has acted reasonably, employers are going to want to show an established anti-harassment policy, which is in written form, has been published, has been delivered to "all" employees, and which has been enforced. Not only will employers also have to show that they acted reasonably in the present case to prevent sexual harassment but employers will also need to show that they have acted reasonably in previous cases of alleged sexual harassment so as to create an environment wherein employees are encouraged to report acts of alleged sexual harassment. In deciding how to establish the first prong of this affirmative defense, employers can rely on language from Faragher. "While proof that an employer had promulgated an anti-harassment policy with complaint procedure was 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." Faragher at _____.

It goes without saying that the best anti-harassment policy will be of no benefit unless it is published to employees. In fact, the decision in Faragher included a rejection of an anti-harassment policy created by the City of Boca Raton because the policy had never been published to employees. At a minimum, the policies would seem to need to be (1) in writing; (2) unambiguous; (3) define what is meant by "sexual harassment"; (4) state that sexual harassment is absolutely prohibited and is against the law; (5) provide a reporting mechanism; (6) provide an alternative reporting mechanism where the offending employer is a supervisor; (7) assure employees that there will be no retaliation or adverse job consequence if they report sexual harassment; (8) state that acts of sexual harassment, etc., will be dealt with confidentially and in an expeditious manner, etc.

The employer’s activity after receiving a complaint will also be important. Employers who fail to conduct a "real" investigation with written findings, etc., or who fail to discipline or counsel the offending employee (assuming there is evidence of sexual harassment) will probably not get very far defending against vicarious liability.

While it will also be helpful to post an employer’s anti-harassment policy in a location, where it can be observed by employees, copies should also be given to each employee with the employee signing an acknowledgment that he or she has received, read, and understands the policy. The acknowledgment form should be signed and dated by the employee. Regular and routine training sessions should also be established for all employees, not only managers and supervisors. Managers should sign separate agreements that they are aware of the company’s anti-harassment policy and will act to enforce it.

Where an employer is able to show that it has acted reasonably to prevent sexual harassment, etc., it must then show that the victim employee has acted unreasonably. Neither the first nor the second part of this affirmative defense will be sufficient without the other. Again, the language of the Supreme Court is instructive "(a)nd while proof that employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to the showing of 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." Faragher at . The factual elements could range anywhere from a victim employee who, after being notified of the company’s anti-harassment policy, fails to complain to a supervisor about the alleged harassment; to an employee who was a voluntary participant in the alleged conduct, or who encouraged the telling of sexual jokes, etc. Employers will still have to contend with plaintiffs who have not followed a published reporting procedure and who testify that the failure was based on fear of termination or adverse job consequence. It is not uncommon in these cases to have a plaintiff testify that he or she was told by the supervisor that if they complained, or filed a grievance, they would be fired. This is one of the reasons why employers will want to show that they have acted reasonably in handling claims of previous sexual harassment so as to create an environment where employees feel safe in reporting alleged sexual harassment.

Conclusion

Bottom line, Faragher and Ellerth, have made it easier to establish liability on the part of an employer in a sexual harassment case, at least where the offending employee is a supervisor. While defenses are still available to employers in this situation, those defenses are limited, and the specific affirmative defense created by Faragher will only be allowed where there has been no tangible employment action, such as discharge, demotion or undesirable reassignment. It is the writer’s belief that the principles set forth in Faragher and Ellerth will very quickly spread to cases in which other forms of harassment (such as racial) are alleged. It is also the writer’s belief that the decisions in Faragher and Ellerth will lead to an increase in the filing of sexual and racial harassment claims against employers.

Section IV

TITLE VII - INVESTIGATING CLAIMS

OF SEXUAL HARASSMENT

Some Suggestions For Investigating Claims

Once a claim sexual harassment has been made, it is incumbent upon the employer to begin a prompt, confidential, professional, and well-documented investigation. The need for an investigation is even more important now in light of the recent decision by the U. S. Supreme Court in Faragher v. City of Boca Raton. One of the first decisions to be made will be who will conduct the investigation. Whoever is chosen should be well trained and versed in Title VII so that he or she can properly understand the various issues involved in the claim and conduct the investigation in a professional, discreet, etc., manner.

On occasion, employers choose to use outside attorneys to conduct the investigation. While the use of outside attorneys in the past has seemed to be a fairly judicious choice, the future use of outside attorneys may create a conflict in the event suit is subsequently filed by the employee. With the recent decision in Faragher v. City of Boca Raton, any corrective steps taken by the employer, including its investigation of the claim, will become a material element in determining whether or not the employer can avail itself of the somewhat limited affirmative defense allowed by Faragher. Where an outside attorney is used to conduct the investigation, the attorney may very well be a primary witness in any subsequent litigation. This means that separate counsel will need to be retained to defend the employer once suit is filed.

Any investigation should be immediate and prompt. The person conducting the investigation should meet with the claimant and in a very non-confrontational manner, get a summary of the allegations, together with the identity of any witnesses or other persons with pertinent knowledge. The employee should be told that the investigation will be conducted in a discreet and confidential manner, and that there will be absolutely no retaliation or adverse action taken by the employer against the employee. If the employee is agreeable, a summary of the allegations should be prepared, and signed, by the employee and then retained by the employer. If the employee is either unwilling or unable to prepare a summary, detailed notes should be taken by the person conducting the investigation so that a statement can be prepared to then be reviewed and signed by the employee. In any event, the person conducting the investigation should take, and retain, detailed notes of his or her interview with the employee. At the conclusion of the interview, the employee should be encouraged to return to the investigator in the event any additional pertinent facts or witnesses are developed or recalled.

There are several obvious reasons for keeping the investigations as confidential as possible. Some of the reasons are that when an investigation is confidential, all involved will typically be more inclined to be open, candid, etc. In addition, if the investigation, as well as the ultimate results, are kept confidential, the employer, as well as witnesses, etc., will be protected from charges of defamation of character, slander, libel, etc.

While the charging employee should be told that the investigation will be conducted in a discreet and confidential manner, the employee should also be told that any witnesses with relevant knowledge, as well as the employee against whom the charges of harassment are made, will be interviewed as part of the investigation. If the charging employee is reluctant to have the investigator interview witnesses and/or the employee against whom the charges are being made, the charging employee should be told that it is part of the employer’s statutory duty under Title VII to investigate any and all charges of discrimination and/or harassment, and that to conduct a proper investigation, witnesses, etc., must be interviewed. Any course of action by the employer other than a thorough and complete investigation will prevent the employer from showing that it undertook prompt and immediate corrective action as required by Faragher v. City of Boca Raton to present a defense on the issue of vicarious liability. If the charging employee continues to be reluctant to have the employer interview witnesses and the employee, against whom the charge of harassment is being made, the employee should be reassured that no retaliation will result and that interviews will be conducted on a very confidential and need to know basis.

Other information which should be obtained are the names and addresses of any persons with whom the employee may have discussed the factual circumstances surrounding the alleged harassment, whether contemporaneously or after the fact. This includes persons with whom the charging employee is acquainted both at, and outside, the workplace. The investigator should also ask for, and obtain, the names of any therapists, counselors, physicians, ministers, etc., with whom the charging employee has discussed the allegations of harassment, together with a list of any physical symptoms, i.e., loss of appetite, sleeplessness, etc., which the charging employee believes have been caused by the harassment.

Once a statement has been obtained from the employee, the investigator should then interview and obtain statements or affidavits from the employee against whom the charge is being made and any witnesses mentioned by the charging employee. These interviews should be conducted in a totally neutral fashion without making any comments concerning the credibility of either the charging employee or the charges. When interviewing witnesses and/or the employee against whom the charge of harassment has been made, thorough statements or affidavits should be obtained with a list of all witnesses who may have been present when any pertinent events took place or who may have heard any pertinent conversations between the charging employee and the employee who is alleged to have been responsible for the harassment. When following up and interviewing witnesses, no stone should be left unturned and no lead left unfollowed..

When the employee against whom the charges have been made is interviewed, he or she should also be told that the investigation will be professional, discreet, and as confidential as possible. No threats of adverse action against the employee should be made during the interview. Again, no comments should be made concerning the credibility of either the claimant/employee or the allegations of discrimination, nor should the employee be told what other witnesses have said.

Once the employee, against whom the charges are being made, has been interviewed, further investigation should be conducted to see whether or not any corroborating facts or witnesses exist. Any witnesses mentioned by the employee should be interviewed, and any witnesses, who have already been interviewed, should be re-interviewed about any newly developed facts or assertions. Again, no stone should go unturned, and no lead left unfollowed.

The employee, against whom the charges have been made against him, should also be reassured that there will be no adverse job action taken until the investigation has been completed and he has had an opportunity to be made aware of the findings and to offer any appropriate rebuttal. In the meantime, this employee should be counseled with regard to any contact with the employee bringing the allegations. In some cases it may be wise to consider transferring the employee, against whom the charge of discrimination has been made, so that he will have as little contact as possible, if any, with the charging employee. This should not, however, result in any decrease in pay or disciplinary action until such time as the investigation has been completed and the allegations of harassment either corroborated or disproved.

In general, confidentiality should be maintained. This will quite often be difficult since the charges will have to be discussed with the party against whom they are made as well as any witnesses. The fact of limited disclosure on an "as needed" basis should be made clear to the complaining employee, who should also be given every reassurance that the charges will only be communicated to those persons necessary to the investigation. When interviewing witnesses, etc., it is advisable to tell them that the investigation and charges are confidential, and that they are not to repeat the charges to other employees, family members, friends, etc. When interviewing witnesses, do not repeat the allegations blow-by-blow but generally introduce the topic of the allegations, and ask them for any information they may have. This will keep witnesses from simply repeating the allegations and may limit favoritism towards one side or the other.

When interviewing the charging employee, witnesses or the employee against whom the charges have been made, etc., get a complete history of their relationship with one another, including both work and away from work activities. In addition, ask questions concerning who said what, to whom, when, where, etc. Also, get the names of anyone else who may have been present when any pertinent statement was made or at the time of any pertinent event. The investigator should be sure to report any and all facts obtained regardless of their apparent lack of credibility.

Once the investigation has been completed, it will be necessary for findings to be entered and appropriate steps taken. These steps may range from counseling all involved employees, to disciplining or terminating the employee against whom the charge of harassment was made. Other possible remedial actions are suspension, and leave without pay. In some cases, the employer may seek to require the employee, against whom the charge of harassment was made, to submit to additional Title VII training. In any event, copies of the findings and all underlying notes should be retained by the employer. Appropriate entries should also be made in the file of the employee against whom the charge of harassment was made. Again, any findings should be kept confidential and only disclosed on a "need to know" basis. This will protect the employer, as well as others, from charges of defamation of character, slander, etc. Even where it is determined that the alleged harassment did not take place, or where sufficient evidence does not exist to support the charge, no adverse action should be taken against the charging employee. To do so would constitute retaliation.

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If you have any questions concerning the above, please get in touch with me:

William S. Sutton, Esq.

(404) 365-4511