1.4 Sexual Harassment

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

1.4 SEXUAL HARASSMENT

1.401 Statutory Prohibition. Title VII of the Civil Rights Act of 1964 prohibits sex discrimination: "It shall be an unlawful employment

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practice for an employer . . . to discriminate against any individual with respect to . . . terms, conditions, or privileges of employment, because of such individual's . . . sex." ³³³

The law was initially used to cover the more traditional forms of discrimination that occurred in hiring and wages. However, because it covers the "terms and conditions" of employment, plaintiffs who were subjected to different treatment on the job simply because of their gender began to use the law. ³³⁴

1.402 Administrative Guidelines. The EEOC, which is charged with enforcing Title VII, issued its Guidelines on Discrimination Because of Sex (the Guidelines on Discrimination) in 1980. Under these guidelines, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when any of the following occur:

1.	Submission to such conduct is a term or condition of employment;
2.	Submission to or rejection of such conduct is made the basis for an employment decision; or
3.	Such conduct interferes with work performance or creates an offensive working environment. 335

1.403 Judicial Rulings.

A. In General. Since 1998 and the Supreme Court's rulings in Faragher v. City of Boca Raton ³³⁶ and Burlington Industries, Inc. v. Ellerth, ³³⁷ an employer's liability for the actions of its supervisors in the context of sexual

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harassment claims often turns on agency principles. These two cases are logical extensions of the Court's decision in Meritor Savings Bank, FSB v. Vinson. ³³⁸ That decision focused on the responsibility that an employer has for actions of its management personnel and directed lower courts to look to agency principles for guidance in this area. ³³⁹ It also held that damages in Title VII cases are not limited to "economic" damages for discrimination. ³⁴⁰

B. Faragher v. City of Boca Raton. In Faragher v. City of Boca Raton, ³⁴¹ Ms. Faragher was a lifeguard for Boca Raton from 1985 until 1990. During her employment, two of her supervisors touched her and other female lifeguards on their shoulders and buttocks without invitation, improperly solicited dates, made vulgar remarks with sexual undertones in front of and directed to them, and made demeaning references in front of them about females in general. Neither Ms. Faragher nor the other female lifeguards complained to Boca Raton's city officials during the five-year period; however, Faragher did mention the incidents to a co-worker.

The city already had a sexual harassment policy in effect since 1986 but did not distribute the policy to the lifeguards or their supervisors. A female lifeguard subsequently complained about the supervisors' behavior by writing a letter to Boca Raton's Personnel Director after she and Faragher had resigned. Boca Raton investigated the complaint, found that the supervisors had behaved improperly, and reprimanded them.

Nonetheless, the trial court, in a bench trial, found Boca Raton liable and ordered it to pay Faragher one dollar in nominal damages. The Eleventh Circuit reversed, holding that the supervisors were not acting within the scope of their employment and, therefore, the employer could not be liable.

The Supreme Court reversed the appellate court and held that an employer can be vicariously liable for the actions of a supervisor. The Supreme Court ruled that (i) if a supervisor creates a hostile environment and there is some tangible action (such as firing or demoting the employee), then the employer will be strictly liable and (ii) if a supervisor creates a hostile environment and there is no tangible action, then the employer may be

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vicariously liable. In this type of case, the employer can raise an affirmative defense to liability or damages.

The affirmative defense requires that (i) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (ii) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

The Court found Boca Raton vicariously liable, holding that the city could not use the affirmative defense because (i) it had not distributed the sexual harassment policy, (ii) its policy did not include an assurance that harassing supervisors could be bypassed to register complaints, and (iii) it did not have a procedure to track supervisors' conduct.

C. Burlington Industries, Inc. v. Ellerth. In Burlington Industries, Inc. v. Ellerth, ³⁴² the plaintiff was a salesperson at Burlington Industries. Her immediate supervisor was a vice-president of Burlington. He had the authority to make hiring and promotion decisions subject to the approval of his supervisor. However, he was not a member of the decision- making or policy hierarchy and was not considered an upper level manager.

The plaintiff claimed that she was subjected to repeated boorish and offensive remarks and gestures during her 15-month employment. On one occasion, her supervisor invited her to a hotel lounge, made comments about her breasts, and told her to "loosen up." During that conversation he allegedly warned her, "You know, Kim, I could make your life very hard or very easy at Burlington." Later, when the supervisor was interviewing the plaintiff for a promotion, he expressed concern that she was not "loose enough." He followed the comment by rubbing her knee. When the supervisor informed the plaintiff of the promotion he also told her that "men in factories like women with pretty butts/legs." On other occasions the plaintiff complained that, when she sought assistance from her supervisor, he responded by telling her that he did not have time for her unless she was calling to tell him what she was wearing.

The plaintiff resigned, citing reasons unrelated to sexual harassment. However, she subsequently sent a letter describing her supervisor's behavior. During her tenure at Burlington, the plaintiff had not complained to anyone in authority about her supervisor's conduct, although she was aware

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that Burlington had a policy against sexual harassment. She testified that she chose not to inform anyone because that person would have been required to inform her supervisor.

The district court granted summary judgment for the employer, but the Seventh Circuit reversed.

The Supreme Court affirmed, holding that employer liability is not to be decided by the type of harassment alleged, such as quid pro quo or hostile environment. The Court noted that those terms are only relevant when determining whether the employee has established an actionable claim. Instead, the Court, using the same language as in Faragher, concluded that an employer is strictly liable for a supervisor's actions when they result in a tangible employment action. A tangible employment action is a significant change of employment status such as hiring, firing, failing to promote, undesirable reassignment, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. In addition, an employer may still be vicariously liable even if no tangible employment action was taken. In those cases, an employer can raise an affirmative defense to liability or damages.

However, the Court held that no affirmative defense is available when the supervisor's harassment results in a tangible employment action. The Court concluded that the plaintiff had failed to prove a tangible employment action that would result in strict liability for the employer, but that the case should be remanded to the district court to consider a claim based on vicarious liability.

D. Vance v. Ball State University. In Vance v. Ball State University, ³⁴³ the Supreme Court examined what it means to be a "supervisor" for the purposes of vicarious liability under Title VII. The Court held that an employee is a "supervisor" if the employee "is empowered by the employer to take tangible employment actions against the victim, i.e., to effect 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.'" ³⁴⁴ The Court thus reaffirmed the definition

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of "supervisor" used in Ellerth and rejected the "nebulous" definition based on the colloquial use of that word which had been advocated by the EEOC. ³⁴⁵

E. Post-Faragher and Ellerth Clarification in the Fourth Circuit. The Fourth Circuit and its district courts have decided a substantial number of cases addressing the affirmative defenses established by the Supreme Court. These decisions, by and large, seem to have given employers significant flexibility in proving the affirmative defenses.

In Mikels v. City of Durham, ³⁴⁶ the district court held that the employer had acted promptly when the plaintiff complained of alleged harassment and, because of that prompt action, the employer was entitled to summary judgment. In affirming this decision, the Fourth Circuit agreed that the employer had acted promptly, although it had reduced the discipline imposed on the supervisor allegedly involved in the harassment. The appellate court, in a detailed discussion of vicarious liability, held that in this case the supervisor did not have the authority to impose an adverse employment action upon the plaintiff and, therefore, the employer was entitled to the Faragher and Ellerth affirmative defense.

In Brown v. Perry, ³⁴⁷ the Fourth Circuit held that the existence of the employer's policy prohibiting sexual harassment, coupled with the voluntary actions of the plaintiff in placing herself in a situation where she was allegedly harassed on a number of occasions, required summary...