GEORGETOWN UNIVERSITY LAW CENTER CONTINUING LEGAL EDUCATION Employment Law and Litigation Update
Washington, D.C. April 22-23, 1999
WHAT HATH THE SUPREME COURT WROUGHT? DEVELOPMENTS IN THE LAW FOLLOWING THE SUPREME COURT’S SEXUAL HARASSMENT RULINGS
Christopher P. Reynolds Morgan, Lewis & Bockius LLP 101 Park Avenue New York, NY 10178-0060 Tel.: (212) 309-6807 Fax: (212) 309-6273 E-Mail: reyn6807@mlb.com
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I.
Introduction1/ In June 1998, the U.S. Supreme Court issued the cases of Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998) (“Faragher/Ellerth”), and dramatically changed the standards for employer liability for supervisory harassment in hostile environment cases. Faragher/Ellerth had an impact, however far beyond its alteration of liability standards. Along with the other landmark sexual harassment cases of 1998 -- Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 188 S. Ct. 998 (1998) (allowing same-sex sexual harassment claims under Title VII) and Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S. Ct. 1989 (1998) (setting a standard, under Title IX, for school district liability for sexual misconduct by a teacher) -- Faragher/Ellerth enlarged and informed a national conversation about sexual harassment issues, a conversation that probably began as far back as the Clarence Thomas/Anita Hill hearings and gained amplitude with the wave of sex scandals associated with Washington power figures -- the President of the United States among them. From an employment perspective, Faragher/Ellerth spurred a corporate “gut check” as many employers reviewed their policies, assessed their human resources capabilities in the area of addressing sexual harassment complaints, and instituted training programs to prevent sexual harassment from occurring. That process continues.
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The writer gratefully acknowledges the assistance of associates Robert J. Cicero and Steven Locke in preparing this paper, and the contribution of Hope Eastman and David Rothenstein of Paley, Rothman, Goldstein, Rosenberg & Cooper in co-authoring with the writer a predecessor paper on a similar subject. 1
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Faragher/Ellerth is having perhaps its most significant impact, however, in the courtroom, particularly at the lower court level. As courts fill in the blanks left by the Supreme Court’s decisions, they are effectively writing (or re-writing) employment policy of the highest order. Whether this is an appropriate role for a court is open to debate. The fact that it is occurring is beyond challenge. Because enough court decisions have been issued to make them too numerous to include in this paper, it instead attempts to synthesize the lower court response to a number of open questions left open or tantalizingly unresolved by the Supreme Court.2/ II. The Landscape After Faragher/Ellerth Under Faragher/Ellerth, employers are now strictly or vicariously liable for sexual harassment by their supervisors, even in cases where sexual demands are unaccompanied by any tangible adverse employment action, (“TAEA”), such as termination or demotion. Employers are liable even without any showing that the employer knew or should have known of the harassing behavior, or were otherwise at fault for the supervisor’s action. If the harassing behavior by a supervisor culminates in a TAEA, employers are automatically liable for the actions of their supervisor. An employer does have, however, an affirmative defense to vicarious liability or damages for acts of a supervisor that do not involve a TAEA, where it can establish by a preponderance of the evidence that: (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the plaintiff unreasonably failed to take
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For an excellent and detailed dissection of Faragher/Ellerth decisions, as well as Oncale and Gebser, I strongly recommend Prof. Marley S. Weiss’ article in the Fall 1998 edition of The Labor Lawyer, Vol. 14, No. 2 at 261-315. 2
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advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher/Ellerth left open several critical questions. What is the effect of a claimant’s inadequate complaint or utter failure to complain? What is a tangible adverse employment action (“TAEA”)? Assuming no TAEA, is the hostile work environment standard still a viable basis for summary judgment? Finally, is the employer nevertheless liable “if everything goes right,” i.e., if an employee makes a complaint which is promptly, thoroughly and effectively investigated and remedied? A. The Absence or Inadequacy of a Complaint The Faragher/Ellerth decisions make clear the High Court’s intent to focus the attention of both employer and employee on internal complaint procedures. But what if an aggrieved employee fails to complain, complains well after the behavior takes place or complains to the “wrong” person, i.e., a union or co-worker? At the outset, it should be noted that summary judgment postFaragher/Ellerth is most likely to be granted in the employer’s favor if it can show that the sexual harassment plaintiff failed utterly to complain. See, e.g., Speight v. Albano Cleaners, Inc., 21 F. Supp. 2d 560 (E.D. Va. 1998) (summary judgment granted based upon plaintiff’s repeated failures to complain). Put differently, as between the two prongs of the Faragher/Ellerth affirmative defense -- the exercise of reasonable care by the employer and the employee’s unreasonable failure to take advantage of these steps, it is an employee’s complete and conclusive failure to complain which is most persuasive to a court. See, e.g., Landrau Romero v. Caribbean Restaurants, Inc., 14 F. Supp. 2d 185 (D.P.R. 1998) (summary judgment granted where plaintiff never complained); Sconce v. Tandy Corp., 9 F.
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Supp. 2d 773 (W.D. Ky. 1998) (same); Jones v. USA Petroleum Corp., 20 F. Supp. 2d 1379 (S.D. Ga. 1998) (same). In Speight v. Albano Cleaners, Inc., 21 F. Supp. 2d 560 (E.D. Va. 1998), the district court addressed the impact of a complete failure to give notice to the employer of the allegedly harassing conduct. Speight was employed by Albano Cleaners from March 5, 1996 until July 27, 1996, during which time she claimed she was sexually harassed by her supervisor, Gregory Freeman. During her training she was subject to “explicit and implicit sexual advances” by Freeman, which included verbal remarks, small gifts, grabbing or attempts to grab and phone calls. According to Speight, this harassment was experienced by other employees as well. Following these events, Speight contacted Cheryl Brophy, another supervisor to request a meeting but never explained why. After several opportunities to discuss the matter over the phone, Speight failed to do so. Speight then contacted the company president to schedule a meeting but did not explain why. Ultimately, on June 12, 1996, Speight met with Brophy but did not discuss the alleged harassment. Following this meeting, Speight resigned. Under these facts, the court concluded that summary judgment in favor of the employer was appropriate under Faragher and Ellerth. Initially, the court determined that although Speight alleged that she was harassed by Freeman, a supervisor, there was no TAEA. Although Speight claimed that Freeman once stated that he had the authority to fire her, he did not, and never attempted, to do so. Further, although Speight claimed that Freeman allegedly hired her with the understanding that she would receive a raise, which she never got, the decision to not give her the raise came from Brophy, not Freeman. Because there was no adverse employment action, the company was free to
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avail itself of the Faragher/Ellerth affirmative defense. Applying the two prong defense, the court found that the employer did have a sexual harassment policy and that Speight, by not complaining despite repeated conversations with Brophy and the company president, failed to avail herself of that policy. Accordingly, the company’s motion for summary judgment with respect to vicarious liability was granted. In Jones v. USA Petroleum Corp., 20 F. Supp. 2d 1379 (N.D. Ga. 1998), the district court focused on plaintiffs’ failure to provide the company with notice of the alleged sexual harassment as a basis for granting summary judgment under the Faragher/Ellerth framework. Two plaintiffs, Kathy Jones and Kristi Wilson, worked at one of the Defendant’s gas stations where they claimed they were sexually harassed by another employee, Richard Brown. Although both employees claimed they quit as the result of Brown’s conduct (and therefore were constructively discharged), neither of them ever reported any harassment during their employment. After dismissing the employees’ constructive discharge claims, the court recognized that under Ellerth and Faragher “the new keystone to a sexual harassment claim is notice. The notice must be sufficient to afford an employer with a reasonable opportunity to remedy the problem.” Jones, 20 F. Supp. 2d at 1384. Accordingly, because there was no adverse employment action (the constructive discharge claim had already been dismissed), and no notice, the company was entitled to invoke the two prong affirmative defense set forth in Faragher and Ellerth and summary judgment was granted in its favor. This case suggests by its language that an employer can argue that certain kinds of notice, although provided, were under the circumstances insufficient.
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In Sconce v. Tandy Corp., 9 F. Supp. 2d 773 (W.D. Ky. 1998), the district court demonstrated that a plaintiff’s failure to make use of a company’s harassment complaint procedure may prove fatal to his or her case on summary judgment. The court first disposed of the quid pro quo claim because there was no evidence that the plaintiff suffered any tangible job detriment from her refusal of the supervisor’s sexual demands. Because the case involved only unfulfilled threats, the court recognized that a hostile work environment analysis was more appropriate. In that regard, the parties agreed that plaintiff established a prima facie case of hostile environment sexual harassment, and the court turned to the question of liability and Tandy’s affirmative defense. Under the first element, the court noted that Tandy had an effective policy in place, which was provided to every new employee with the employee handbook, and which did not require that complaints be filed with an immediate supervisor. The court noted as a critical fact that once Tandy learned of the allegations from plaintiff’s EEOC complaint, it conducted an investigation and enforced discipline. Under the second element, the plaintiff admitted that she knew of the harassment policy and where to report the misconduct, but decided not to report the conduct. The court rejected plaintiff’s contention that she failed to report the harassment because her supervisor threatened termination: “a threat of termination, without more, is not enough to excuse an employee from following procedures adopted for her protection. To hold otherwise would render the affirmative defense meaningless.” Tandy could not be held liable for its supervisor’s harassment, and the court granted Tandy’s summary judgment motion. In Kendrick v. Country Club Hills Bd. of Educ., 1998 WL 440891 (N.D. Ill. July 27, 1998), the court first determined that the sporadic, largely non-sexual comments by the supervisor at
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issue were insufficient to constitute actionable sexual harassment. Assuming arguendo that actionable harassment occurred, the court went on to address vicarious liability and the employer’s affirmative defense. On the first element, the School District had a sexual harassment policy in place with an effective grievance procedure. The policy was provided to all employees. The School District initiated an investigation within days of learning of the plaintiff’s EEOC complaint; and the investigation resulted in a 21-page report finding that no harassment occurred. As such, the School District satisfied the first element. On the second element, the plaintiff failed to notify anyone in the School District pursuant to its policy, and refused to give a statement or cooperate with the school’s investigation in any way. Thus, the plaintiff failed to use the complaint procedure, and the employer satisfied the second element as well. Accordingly, even if there were actionable sexual harassment, the court found that the School District met its affirmative defense burden, and granted its summary judgment motion. The Eleventh Circuit’s decision in Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th Cir. 1999), superseding Coates v. Sundor Brands, Inc., 160 F.3d 688 (11th Cir. 1998), addressed under what circumstances an employee gives sufficient notice of the alleged harassment to hold the employer vicariously liable for a supervisor’s unlawful conduct. Plaintiff Vicki Coates began working as a forklift operator for Defendant on January 21, 1992. Soon thereafter she was transferred to the storeroom where she worked closely with the plant buyer, Emmett Long. On October 19, 1994, over two years after her transfer, Coates confided in a co-worker that Long had been harassing her, including offering her money for sex, calling her at home, and threatening to kidnap her. The co-worker brought the allegations to the attention of the company’s human resource manager, Mike Sanders, but at Coates’ request, kept her identity confidential. As a result of this conversation, the co-worker
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agreed with the human resources manager to speak with Long about the allegations. The co-worker then convinced Coates to talk to Sanders. Coates told Sanders that she did not want the current work assignment to change. Nevertheless, the harassment continued. When asked how things were progressing by Sanders, however, Coates responded “that things were fine.” Between November 1994 and January 1995, Coates approached her and Long’s supervisor Nancy Christman, but did not indicate why, stating only that it was a personal matter. Because Plaintiff and Christman had discussed personal matters in the past, Christman responded that she did not have time. In March or April 1995, Plaintiff met with Lloyd McLean, Christman’s superior, and spoke with him about various matters including work in the storeroom, strategies for improving productivity and career prospects. During this conversation, Coates showed McLean a note from Long offering her $100 for 45 minutes of hugs and kissing or “for a stop loving Vicki guarantee.” On September 17, 1995, Coates told Blanch Sullivan, a company human resources consultant, of the harassment and an investigation was conducted. Long was suspended without pay during the investigation and then resigned. On September 21, 1995, Coates went on a “medical leave of absence.” On March 21, 1996 she resigned. On these facts, the Eleventh Circuit focused on a single inquiry, namely whether Coates “made reasonably sufficient use of the channels” created by her employer to put the company on notice of the harassment. In ruling that she did not, the court held that, although Plaintiff provided notice to Sanders (the human resources manager), his response was reasonable given that he knew Lee had spoken with Long and that Plaintiff never again gave any sign that the problem was persisting. The conversation with Christman did not constitute notice because Plaintiff never advised Christman of the
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harassing conduct. Similarly, her conversation with McLean was insufficient to provide the requisite notice because the subject of the note came amid multiple other topics with no elaboration. It was only on September 17, 1995 that adequate notice of the harassment was given to Sullivan, and this notice was met with a prompt and adequate response. Accordingly, summary judgment was appropriate. Interestingly, the decision, issued per curiam, makes little reference to Faragher and Ellerth. A concurring opinion placed the court’s decision in the Faragher/Ellerth framework, explaining that in the case where a supervisor sexually harasses a subordinate but there is no adverse employment action, the failure to provide the employer with notice (assuming an adequate sexual harassment policy) will permit the employer to invoke the two prong affirmative defense and obtain summary judgment. This case is noteworthy in that it apparently limits an employee’s avenues of complaint to those constructed by the employer for that purpose. In Montero v. AGCO Corp., 19 F. Supp. 2d 1143 (E.D. Cal. 1998), the district court addressed the effect of delay by the Plaintiff in complaining about sexual harassment will have on her Title VII claim. Plaintiff Carrie Ann Montero was employed by AGCO, a company that sells and produces farm equipment and related services, from April 1993 to July 1995 when she resigned. According to Montero, shortly after she began work, the Warehouse Manager, Glenn Carpenter, and the Warehouse Supervisor, Russ Newmann, began harassing her. The company maintained a sexual harassment policy and complaint procedure in its employee handbook which Montero acknowledged receiving and knowing. Nevertheless, she waited until March 1995 to file her complaint against Carpenter, Newmann and a co-employee, Robert Weeks. An investigation was commenced four days later and at her request, Montero was put on administrative leave with pay for the remainder of the
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week. As a result of the investigation, inappropriate conduct was determined to have occurred. Carpenter was terminated and Newmann and Weeks were “severely warned” that similar conduct in the future could lead to termination. Later that month, Montero informed the company that upon the advice of her doctor she would not be returning to work. She then went on short term disability leave and ultimately resigned. Applying the two prong affirmative defense set forth in Faragher and Ellerth, the court granted the company’s motion for summary judgment, holding both that the employer maintained a sufficient policy against sexual harassment and that Montero’s two year wait -- between the start of the alleged unlawful conduct and her complaint -- was unreasonable as a matter of law. In reaching this conclusion, the court rejected Plaintiff’s attempts to justify her delay by her general fear of retaliation. In Madray v. Publix Super Markets, Inc., 30 F. Supp. 2d 1371 (S.D. Fla. 1998), a court again limited proper notice to the procedures in the corporate sexual harassment policy. Two female employees brought an action against Publix Supermarkets, Inc. (“Publix”), alleging inter alia, hostile work environment sexual harassment in violation of Title VII. Plaintiffs alleged that their supervisor, Ronald Selph, created a hostile working environment through his practice of hugging and kissing female employees. Plaintiffs alleged that, over time, the contact became more and more inappropriate and offensive. Madray, 30 F. Supp. 2d at 1373-74. Plaintiffs complained to numerous individuals, including various assistant managers, who did nothing to remedy the conduct. Id. at 1374. However, the complaints were reported eventually to the District Manager, by one of the assistant managers, not by either plaintiff. The District Manager began an investigation the next day, which resulted in Selph receiving a written warning, a demotion and a transfer to a store in another city. Id.
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The court held that Publix was entitled to raise the affirmative defense set out in Faragher and Ellerth as a bar to liability, since there was no adverse employment action. Id. at 1376. The court held that, despite their numerous complaints, the plaintiffs had unreasonably failed to take advantage of any preventative or corrective opportunities provided by Publix to avoid harm. Id. The court reasoned that Publix had a sexual harassment policy which was distributed in the form of a handbook which plaintiffs admitted they had received. The policy set forth a procedure for reporting allegations of sexual harassment, including identification of appropriate persons in management to be contacted. Id. “Appropriate persons” did not include, apparently the assistant managers. Plaintiffs argued that they did not follow the procedures outlined in the handbook because they feared repercussions for making a complaint. Id. However, the court pointed out that neither plaintiff’s employment was impacted adversely when their complaint was eventually brought to the attention of an authorized individual and, more importantly, the court noted that once the complaint reached the proper level of authority, it took one day to begin an investigation and one day for Publix to take prompt and effective remedial action against Selph. Id. Plaintiffs also argued that the handbook was confusing. However, plaintiffs admitted in deposition testimony that they knew, per the handbook, that the District Manager was the appropriate person to contact, and the court found that the handbook was unambiguous. Id. To deny Publix the affirmative defense on these facts, the court found, would be to “permit an employee to disregard a policy of which she was admittedly aware, based on generalized fears [and] would require an employer to be automatically liable for harassment committed by a supervisor.” Id. at 1376.
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This argument is not, of course, universally accepted. In Vendetta v. Bell Atlantic Corp., 1998 WL 675111 (E.D. Pa. Sept. 8, 1998), the Eastern District of Pennsylvania not only applied Burlington Industries and Faragher to hostile environment claims under the American with Disabilities Act (“ADA”), but also engaged in an analysis of the second element of the affirmative defense to liability. Because the plaintiff failed to adduce any evidence that Bell Atlantic created or sanctioned a hostile work environment on the basis of her gender, the court granted Bell Atlantic’s summary judgment motion on the Title VII claim. However, the court found material disputes of fact on plaintiff s ADA hostile environment claim. Bell Atlantic argued that it should be shielded from vicarious liability for its supervisor’s conduct because plaintiff failed to avail herself of its “preventative or remedial apparatus.” The court rejected such argument, noting that there was a fact question whether plaintiff suffered a tangible employment action, and that even though the plaintiff did not utilize Bell’s formal complaint mechanisms, she made her concerns known to her immediate supervisors and their immediate supervisors. As such, the court found: “this is thus not a case in which a defendant employer may be said to have had no notice of the elements of the allegedly hostile environment.” Accordingly, plaintiffs ADA discrimination and hostile environment claims were allowed to proceed to trial. Two other cases denied summary judgment despite deficiencies in the complaint. The D.C. Circuit’s decisions in Greene v. Dalton, 164 F. 3d 671 (D.C. Cir. 1999), took a different perspective on a plaintiff’s failure to complain. Plaintiff Luria Greene sued her former employer, the Navy, where she worked as a temporary engineering technician for, inter alia, sexual harassment. According to plaintiff, from the commencement of her employment on June 19, 1995, her immediate supervisor, Lieutenant Commander Clause, subjected her to unwelcome discussions about
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sexual matters and unwelcome advances. She further claimed that ten days later, on June 29, 1995, Clause raped her. On August 2, 1995, after allegedly being propositioned again, Plaintiff reported the rape to the Navy’s EEO counselor. She filed a formal sexual harassment complaint with the Navy’s Equal Employment Office in October 1995. Clause admitted that the two had sex but countered that the relationship was consensual. As evidence, Clause offered a diary he claimed was Greene’s which confirmed his version of the facts. Greene submitted an affidavit supporting her claims and stating that the diary produced by Clause was a forgery. Because Clause was Plaintiff’s supervisor, and there was no adverse employment action, the D.C. Circuit applied the two prong affirmative defense under Faragher and Ellerth to determine whether the Navy could be held vicariously liable for the alleged harassment. Answering this question in the affirmative, the court determined that although the Navy did have an “anti-harassment” policy, the court could not determine as a matter of law whether the Plaintiff failed to avail herself of whatever remedial apparatus was in place. In order for the Navy to avoid all liability based upon its Faragher defense, . . . it must show not merely that Greene inexcusably delayed reporting the alleged rape--which is what it emphasizes in its brief--but that, as a matter of law, a reasonable person in Greene’s place would have come forward early enough to prevent the harassment from becoming