Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and is a serious problem in the American workplace. During 2017 alone, the U.S. Equal Employment Opportunity Commission received 6,718 new charges of sexual harassment on the job. See https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_eeoc_only_by_state.cfm.
Although the term “sexual harassment” is commonly used to describe a wide range of workplace conduct, actionable sexual harassment consists of unwanted sexual advances or other unwelcome conduct that is motivated by the victim’s gender, and which either results in a tangible personnel action or is so severe or pervasive as to alter the terms and conditions of employment. Sexual harassment can happen to both men and women. The perpetrator may be of the same or opposite sex, and may be a supervisor, a co-worker, or even a non-employee. Victims of sexual harassment can include not only direct targets of unlawful conduct, but also those who are exposed to harassment aimed at another person.
Lawyers who are new to the field of sexual harassment law, and to the law of unlawful discrimination more generally, will find that the large number of sexual harassment cases that have passed through the courts have generated a significant body of case law, both at the federal level and in states having comparable anti-discrimination statutes. This outline is intended only as a brief, introductory guide for new practitioners. It addresses some of the main themes in sexual harassment law, but does not present a comprehensive review of the current case law in the area.
I. Sexual Harassment Defined
Title VII provides that “[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] . . . terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a). Discrimination with respect to the terms, conditions or privileges of employment on the basis of sex includes sexual harassment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). In Meritor, the Supreme Court agreed with the EEOC’s 1980 Guidelines, which defined sexual harassment as “[u]nwelcome sexual advances … and other … conduct of a sexual nature” having the “purpose or effect of interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.” Id.
The Supreme Court clarified the scope of actionable sexual harassment in 1998 in two landmark cases – Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751 (1998), and Faragher v. city of Boca Raton, 524 U.S. 775 (1998).1In Ellerth and Faragher, the Court established a new standard for establishing an employer’s vicarious liability for sexual harassment by a supervisor. The inquiry begins with an examination of whether the complainant has suffered a “tangible employment action” in connection with gender-based, unwelcome conduct. Ellerth 524 U.S. at 753.
II. Tangible Employment Action or Hostile Work Environment?
A. Tangible Employment Action
In cases of sexual harassment by a supervisor and where the employee is affected by a tangible employment action, the employer is vicariously liable for the conduct.
A “tangible employment action” constitutes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at 761. In such a case, the employer is strictly liable for the conduct of its supervisor or agent. Id. at 763; accord Faragher, 524 U.S. at 790.2
B. Hostile Work Environment Sexual Harassment
Where there is no such tangible employment action – that is, where the employee is still employed with no adverse change in her status – the employer may still be liable for “hostile work environment sexual harassment,” but only under certain circumstances.
A sexually hostile work environment is one in which “discriminatory intimidation, ridicule, and insult . . . [is] sufficiently severe or pervasive as to alter the conditions of a victim’s employment.” Meritor, 477 U.S. at 67. In Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), the Supreme Court recognized that the determination of what constitutes a sufficiently severe or pervasive work environment “is not, and by its nature cannot be, a mathematically precise test.” Id. at 22. The Court set forth a number of factors that finders of fact should consider in making such a determination:
[W]hether an environment is “hostile” or “abusive” can be determined only 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.
Id. at 23. See also, Faragher at 785.
In determining whether allegedly harassing conduct is sufficiently hostile or unwelcome to alter the terms and conditions of employment, courts apply a “reasonable person” standard. Harris, 510 U.S. at 21. In order to find the employer liable for the conduct in question, a court must find both that the conduct was in fact subjectively hostile or abusive to the plaintiff, and that it would have been objectively hostile or abusive to a reasonable person. Id. at 22.
The “severe or pervasive” standard is intended to ensure that viable sexual harassment claims arise only as a result of extreme conduct. Faragher, 524 U.S. at 788. Under this standard, occasional or sporadic teasing, gender-based jokes, offhand comments and other such behavior do not amount to actionable sexual harassment. Id. On the other hand, although harassing conduct is actionable only if it is severe or pervasive enough to constructively alter the conditions of the victim’s employment, it need not result in “concrete psychological harm.” Harris, 510 U.S. at 22. The prohibitions of Title VII “come into play before the harassing conduct leads to a nervous breakdown.” Id. at 21.3
Once a court has determined that workplace conduct is sufficiently severe or pervasive to constitute a hostile work environment, it must decide whether the employer is to be held vicariously liable for the actions of the employee or employees who engaged in the conduct. In Ellerth and Faragher, the Supreme Court held that an “employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Ellerth, 524 U.S at 765. However, in light of Title VII’s stated goals of “promot[ing] conciliation rather than litigation” and “encouraging employees to report harassing conduct before it becomes severe or pervasive,” the Court declined to impose “automatic liability” for all occurrences of such harassment which did not lead to a tangible employment action. Id. at 764. In hostile work environment cases where no tangible employment action has occurred, the employer may raise an affirmative defense that will avoid liability. The Court explained in Faragher, 524 U.S. at 807:
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.
An employer can satisfy the first element of the two-pronged affirmative defense by showing that it maintained and implemented an effective mechanism for deterring and remedying workplace discrimination and harassment. At a minimum, this usually means that the employer must 1) have in place and disseminate a sexual harassment policy that 2) provides a reasonable complaint procedure (i.e., accessible and understandable to employees, and allowing them to report harassing conduct to someone other than the harasser). See id. at 807-08; Ellerth, 524 U.S. at 773-74.
In order to satisfy the second prong of the affirmative defense, the employer must show that the plaintiff failed to proceed with or exhaust the internal processes before taking legal action, and that she did so unreasonably. This means that, in order to hold her employer liable for a sexually hostile work environment, an employee in most circumstances must first file an internal complaint if a reasonable complaint procedure exists, and must do so promptly. See, e.g., Roebuck v. Washington, 408 F.3d 790, (D.C. Cir. 2005) (upholding defense verdict where plaintiff waited seven months to file internal complaint). Although a plaintiff may excuse such a failure by demonstrating she had a “credible fear” that the complaint procedure would have been futile or led to retaliation, a generalized fear of retaliation will not excuse her failure to make use of her employer’s complaint procedure. For a comprehensive explanation of the factors that determine the reasonableness of a victim’s inaction, see Reed v. MBNA Marketing Sys., Inc., 333 F.3d 27, 35-37 (1sht Cir. 2003).
In light of the affirmative defense that the Supreme Court established in Ellerth and Faragher, lawyers representing parties in sexually hostile work environment cases should be sure to carefully examine the employer’s sexual harassment policy and complaint procedure. Where such policies and procedures exist, practitioners advising employees should counsel their clients to use the procedures absent good reason to believe that the doing so would be futile or would leave to adverse consequences.
III. A Few Issues Commonly Arising in Sexual Harassment Cases
A. Single-Incident Sexual Harassment
Many plaintiffs who assert hostile work environment claims will base their claims on a series of incidents which they allege were sufficiently pervasive to alter the terms and conditions of their employment. In some cases, however, a plaintiff maintains that a single incident was severe enough, in itself, to have that effect. Courts have been generally reluctant to find for such plaintiffs except in the most extreme circumstances. The Supreme Court addressed such an incident in Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (per curiam), in which the female plaintiff’s supervisor read aloud, to the plaintiff and a male co-worker, a particularly crude, sex-based comment, and the supervisor and the male co-worker then chuckled. Id. at 269. The Supreme Court held this single incident of alleged sexual harassment was not severe enough to violate Title VII. Id. at 271. In some cases, however, especially ones involving sexual assault or a particularly inappropriate touching, courts have found sexual harassment in single instances of conduct. See, e.g., Anderson v. G.D.C., Inc., 281 F.3d 452 (4th Cir. 2002).
B. Constructive Discharge
It is not uncommon for a victim of alleged sexual harassment to become so fed up with hostile or abusive conduct that she quits her job. In Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), the Supreme Court held that a victim of sexual harassment could make out a “constructive discharge” claim if she showed that a reasonable person in the her position would have viewed the working conditions as being so intolerable that she felt she had no other option but to walk off the job.
If the employer or its agent precipitates the employee’s resignation through an official action such as a demotion or unfavorable transfer, then the constructive discharge is tantamount to a tangible employment action, and the employer is vicariously and strictly liable. Id. at 142-148. Where the employee quits without an official act of the employer, however, the employer may assert the affirmative defense that the Supreme Court established in Ellerth and Faragher.
C. Same-Sex Harassment
In Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998), the Supreme Court held for the first time that same-sex sexual harassment was actionable under Title VII. The Court emphasized that harassment “because of sex,” which is prohibited by Title VII, need not be between members of opposite sexes, as long as the harassment was directed at members of one sex and not the other.
The timeliness of a charge may hinge on whether or not the sexual harassment in question stems from a tangible employment action or from conduct creating a hostile work environment. See Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). A “discrete act” occurs on the day that it happens and a prospective client must file a charge within the requisite 180 or 300 days from that date, depending on the state where the conduct occurs. In contrast, the Court noted in Morgan, “hostile work environment claims are different in kind from discrete acts. Their very nature involves repeated conduct.” Id. at 115. For this reason, the Court held, hostile work environment claims constitute a single unlawful employment practice, and as long as one act occurs within the actionable period, all the acts contributing to the hostile environment may be considered for determining liability. Id. at 117.
1 Prior to these cases, courts and legal commentators had differentiated between “quid pro quo” sexual harassment and “hostile work environment” sexual harassment as distinct forms of actionable conduct. In Ellerth, the Supreme Court observed that the dichotomy was of “limited utility” other than in differentiating between the presence and absence of implemented threats. Ellerth, 524 U.S. at 752.
2 The rationale for applying strict liability is that only an agent of the employer can cause a tangible employment action, which is necessarily “an official act of the enterprise.” Ellerth, 524 U.S. at 762. Under principles of agency law, such challenged actions are aided by the agency relationship. The Supreme held that the test of agency, and therefore vicarious liability, “will always be met when a supervisor takes a tangible employment action against a subordinate.” Id. at 762-63.
3 The question of whether conduct is sufficiently “severe or pervasive” to give rise to an actionable hostile work environment claim can be answered only on a case-by-case basis, and has generated a great deal of litigation. The EEOC Policy Guidance on Current Issues in Sexual Harassment (www.eeoc.gov/policy/docs/currentissues.html), discusses examples of questionable conduct and cites a number of court decisions applying the “severe or pervasive” standard.
© Copyright 2019, David J. Marshall, Partner, Katz Banks Kumin, Washington, D.C.
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