Supreme Court Rulings on Sexual Harassment Disputes
Shanan Gwaltney Gibson and Heather Roberts-Fox
American Psychological Association
Never before has the topic of sexual harassment received so much
coverage in the courts and the press during 1 year. The unusually high number of cases
before the Supreme Court this term are occurring as the number of lawsuits nation-wide
continue climbing. Following upon the largest settlement ever paid in the resolution of a
sexual harassment case ($34 million between Mitsubishi Motor Manufacturing and the EEOC),
the Supreme Court ruled on the issues of the vicarious liability of an employer whose
supervisory employees create a "sexually hostile atmosphere" for other
employees, but no tangible employment outcomes are evidenced, as well as the legitimacy of
sexual harassment claims when the victim and harasser are the same sex. The message is
clear: Sexual misconduct will not be tolerated under Title VII, and if it is, the employer
can expect to pay a high price.
Vicarious Liability Decisions
Two 1998 Supreme Court decisions addressed the issue of an
employer’s responsibility when one or more of his or her supervisors conducts himself
or herself outside the scope of the employee’s authority and creates a sexually
hostile work environment for another employee.
Kimberly Ellerth worked for Burlington Industries in Chicago from March
1993 until May 1994. Ellerth alleged that she was subject to constant sexual harassment by
Ted Slowick, her indirect supervisor who worked in an office in New York, during this
time. Despite knowledge of Burlington Industries’ policy against sexual harassment,
Ellerth never reported Slowick’s behavior while employed. Approximately 3 weeks after
having quit her job, Ellerth faxed a letter to Burlington explaining that she had quit as
a result of Slowick’s behavior.
In October 1994, Ellerth filed suit in the United States District Court
claiming that Burlington Industries engaged in sexual harassment that forced her
constructive discharge. The Court found that the company neither knew, nor could have
known, about the conduct and was therefore not liable. The Court also noted that Ellerth
had not used the internal complaint procedures available to her at Burlington. The Court
of Appeals en banc reversed. The Supreme Court held its decision from Burlington
Industries v. Ellerth in Faragher v. City of Boca Raton.
Beth Ann Faragher worked as a lifeguard for the city of Boca Raton,
Florida, between 1985 and 1990. During that time, two of her immediate supervisors, Bill
Terry and David Silverman, created a "sexually hostile atmosphere" by repeatedly
subjecting Faragher and other female lifeguards to "uninvited and offensive
touching," by making lewd remarks, and by referring to women in "crude,
demeaning, and offensive" terms. This behavior, Faragher alleged, constituted
discrimination in the "terms, conditions, and privileges" of her employment in
violation of Title VII of the Civil Rights Act of 1964. Following a bench trial, the
District Court opined that the conduct of the supervisors was discriminatory harassment,
and was sufficiently serious to constitute an abusive work environment. Furthermore, the
Court held that the city could be held liable for the behavior of its employees because:
(a) the harassment was sufficiently pervasive to support an inference that the city had
"knowledge, or constructive knowledge" of it; (b) under traditional agency
principles, Terry and Silverman were acting as the city’s agents when the harassing
occurred; (c) a third supervisor had knowledge of the harassment and failed to report it;
and (d) although the city had a sexual harassment policy, it was not adequately
distributed among city employees. The Eleventh Circuit, sitting en banc, reversed.
Citing Meritor Savings Bank, FSB v. Vinson, the Court of Appeals held that Terry
and Silverman were behaving outside the scope of their employment, that their agency
relationship did not facilitate the harassment, that constructive know-ledge of the
harassment could not be imputed to the city, and that the city could not be held liable
for negligence in failing to prevent the harassment.
Besides the obvious issue of sexual discrimination, the Supreme Court
found that these two cases shared a larger common denominator: the question of whether or
not an organization can be held responsible for its employees’ illegal behaviors,
despite not having had explicit knowledge that they were occurring. Precedent held that
the standard of employer responsibility hinged upon the type of harassment that occurred.
If a plaintiff established a "quid pro quo" claim, the employer was subject to
vicarious liability. In both the Faragher and the Burlington Industries cases, no tangible
employment outcome or damage was evidenced as a result of resisting sexual harassment. The
Court adopted the following holding in both cases:
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 preponderance of the evidence. No affirmative
defense is available, however, when the supervisor’s harassment culminates in a
tangible employment action, such as discharge, demotion, or undesirable reassignment.
The affirmative defense includes two necessary elements: (a) that an
employer "exercised reasonable care to prevent and correct promptly any sexually
harassing behavior," and (b) that the employee "unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the employer or to
avoid harm otherwise." However, possession of an anti-harassment policy by an
organization is not sufficient to fulfill the first, nor is failure to use an existing
anti-harassment policy proof of the second.
These rulings were not unanimous. In dissenting opinions, Justices
Thomas and Scalia note that Title VII is judged by differing standards for sexually and
racially hostile work environments. They state that the standard should be the same:
"An employer should be liable if, and only if, the plaintiff proves that the employer
was negligent in permitting the supervisor’s conduct to occur." When an adverse
employment consequence is suffered, the employer is vicariously liable because these
actions can only be performed with the specific authority granted by the employer (e.g. a
supervisor who fires an individual is acting as the employer at the time). In a hostile
work environment, however, the employer can only be held liable for negligence. Absent
detriment to employment, Boca Raton can not be held liable for Terry and Silverman’s
behavior. Under a negligence standard, Burlington can not be held responsible for
Slowick’s conduct.
Furthermore, contrary to Justice Souter’s remark that "It is
by now well recognized that... sexual harassment by supervisors (and, for that matter,
co-employees) is a persistent problem in the workplace," and that prevention of
harassment is "one of the costs of doing business" for an employer; Thomas and
Scalia note that "Sexual harassment is simply not something that employers can wholly
prevent without taking extraordinary measures," and that "In this day and age,
no sexually harassed employee can reasonably believe that a harassing supervisor is
conducting the official business of the company or acting on its behalf."
Same-Sex Harassment Decision
The Supreme Court was unanimous in examining an emerging workplace
question: whether harassment can be considered illegal sex discrimination if the harasser
and victim are of the same sex. The justices ruled yes.
Joseph Oncale worked for Sundowner Offshore Services as a roustabout on
an oil platform in the Gulf of Mexico. While employed, Oncale was subjected to
sex-related, humiliating actions by his co-workers and supervisors, John Lyons, Danny
Pippen, and Brandon Johnson. He was also physically assaulted in a sexual manner by Pippen
and Lyons, as well as threatened with rape by Lyons. Oncale’s complaints to
supervisory personnel resulted in no remedial action and Oncale quit his job.
Oncale filed suit in District Court, but the Court found that Oncale
had no cause of action under Title VII because he was a male being harassed by other
males. The Fifth Circuit Appeals Court affirmed. The Supreme Court reversed and remanded
the case stating that "...harassing conduct need not be motivated by sexual desire to
support an inference of discrimination on the basis of sex." The Court went on to
state that while male on male harassment was not the principal evil that Congress had been
concerned with when enacting Title VII, it assuredly falls under the category of
reasonably comparable evils.
Impact on Employees
Concerns regarding the impact of the rulings on workplace environment
were addressed by the justices when pointing out that the "real social impact of
workplace behavior often depends on a constellation of surrounding circumstances...."
The requirement that conduct be severe and pervasive enough to create an objectively
hostile or abusive work environment in order to be considered discriminatory still stands
and is intended to be "sufficient to ensure that courts and juries do not mistake
ordinary socializing in the workplace, such as male-on-male horseplay or inter-sexual
flirtation, for discriminatory ‘conditions of employment.’
"
All of the Court’s decisions on sexual harassment in the workplace
make it easier for employees to sue for harassment under Title VII, but the rulings also
point employers toward the means for avoiding liability. With this topic presently at the
forefront of public awareness, it is important that organizations realize that no one is
immune. Now, more than ever, the only defense is to prevent harassment before it ever
occurs.
TIP
Vol. 36/No. 2 October, 1998
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