Recent Developments in the Law of Sexual Harassment

• Publication year: 1999
• Pages: 5

28 Colo.Law. 5 Colorado Lawyer 1999.

1999, May, Pg. 5. Recent Developments in the Law of Sexual Harassment

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Vol. 28, No. 5, Pg. 5

The Colorado Lawyer
May 1999
Vol. 28, No. 5 [Page 5]

Articles
Recent Developments in the Law of Sexual Harassment
by Christelle C. Beck

As a result of the recent U.S. Supreme Court rulings in three Title VII sexual harassment cases and one Title IX case attorneys specializing in the area of employment law will face a number of changes in their approach to litigation advice to employer-clients, and investigations of accusations of sexual harassment. All practitioners need to be aware of the changes and advise their employer-clients that it is more important than ever to implement a proactive anti-discrimination policy in the workplace. Although this article specifically focuses on sexual harassment, the analysis of the recent cases discussed below also applies to Title VII claims of discrimination

Because of the recent U.S. Supreme Court rulings, the focus for deciding employer liability has changed from determining whether the harassment was a quid pro quo or a hostile work environment harassment to whether the employee suffered from an adverse employment action because of the harassment. Most importantly, the Court established an affirmative defense for the employer when there is no adverse employment action. If the employer raises the defense, he or she must show that the employer exercised reasonable care to prevent and promptly correct the sexual harassment and that the plaintiff employee unreasonably failed to take advantage of opportunities either to prevent or avoid the harm. Further, the Court broadened "sexual harassment" to include same-sex harassment and narrowed employer liability of Title IX sexual harassment actions by holding that plaintiffs have to prove the employer had actual notice and was deliberately indifferent to the harassment.

This article provides a brief background on sexual harassment actions and then discusses the 1998 Supreme Court rulings and the effect these four cases have had on the jurisprudence of sexual harassment.

BACKGROUND

Most sexual harassment suits are brought under Title VII of the Civil Rights Act of 1964, which provides in pertinent part:

It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to [her or] his compensation, terms, conditions, or privileges of employment because of [that] individual's race, color religion, sex or national origin. . . .1

Pursuant to terminology used in Meritor Savings Bank v. Vinson,2 sexual harassment liability developed into two categories: "quid pro quo" and "hostile work environment." Sexual harassment occurs under a quid pro quo theory where submission to sexual demands is made a condition of tangible employment benefits or under a hostile environment theory where an employer's conduct or conduct of an employee, which can be attributed to the employer, creates a work environment that is hostile or abusive to the plaintiff.3

Basically, as a result of the recent rulings, the U.S. Supreme Court did not change the analysis of quid pro quo or hostile work environment sexual harassment. A quid pro quo analysis remains unchanged. However, although the analysis of hostile work environment harassment remains the same, the Court did modify the approach of determining employer liability and created an affirmative defense.

Below is a brief overview of the quid pro quo and hostile work environment sexual harassment theories. The issue of employer liability in hostile work environment claims is addressed in more detail later in this article.

Quid Pro Quo Sexual Harassment

Quid pro quo sexual harassment involves the exchange of sexual favors for tangible employment benefits by a supervisor. A quid pro quo charge of sexual harassment can be based on a single incident. The charging plaintiff has to prove by a preponderance of the evidence that employment favors were denied because the plaintiff refused to grant sexual favors to the supervisor. The plaintiff must show that she or he was otherwise qualified to receive the relevant job benefit and that the benefit was actually withheld or altered because of sexual harassment.4

The elements of a quid pro quo claim of sexual harassment are as follows: (1) the plaintiff is a member of the protected class; (2) the plaintiff was subject to "unwelcome" sexual harassment in the form of requests for sexual favors or verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the plaintiff's reaction to the harassment complained of affected a tangible aspect of the employee's compensation, terms, conditions, or privileges of employment; (5) submission to the advances was an express or implied condition for receiving job benefits or refusal to submit to a supervisor's sexual demand resulted in a job detriment; and (6) there is respondeat superior liability of the employer.5

The circuit courts have found fairly consistently that the employer is strictly liable for the actions of the supervisor based on the agency doctrine of respondeat superior in quid pro quo cases.6 This type of harassment is committed by someone with authority to change the employee's job status. Moreover, a policy prohibiting sexual harassment does not insulate the employer from liability. To avoid liability, the employer must show some legitimate motive for the adverse employment action, such as poor work performance, excessive absenteeism, lack of credential, or insubordination. If the employer supports its argument, the plaintiff then has the burden to demonstrate by a preponderance of the evidence that the proffered explanation was not the real reason for the employment decision, but merely a pretext.7

Hostile Work Environment Sexual Harassment

The courts have wrestled with the question of what constitutes a hostile work environment sexual harassment ever since the concept became a judicially created legal theory. Any factor can be relevant to the determination of hostile work environment, including 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. No single factor is required; the determination is based on the totality of the circumstances.8

Title VII is not a "general civility code" and does not include "the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing."9 Simple teasing, off-handed comments, and isolated incidents, unless extremely serious, will not amount to discriminatory changes in the terms and conditions of employment. Therefore, hostile work environment sexual harassment becomes actionable only if it is extreme.10

A hostile work environment charge of sexual harassment consists of verbal or physical conduct of a sexual nature that unreasonably interferes with the employee's work or creates an intimidating, hostile or offensive working environment.11 The environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile, or abusive, and one that the victim perceived as abusive.12

The elements of a hostile work environment sexual harassment claim are: (1) the plaintiff belongs to a protected group; (2) the plaintiff was subjected to unwelcome verbal or physical conduct, usually of a sexual nature; (3) the harassment was based on gender; and (4) the conduct was sufficiently severe or pervasive to alter the terms, conditions, or privileges of employment to create an objectively hostile or abusive working environment.13

Whether the conduct was offensive is judged by the reasonable person standard, and the victim must perceive it as offensive. Moreover, the conduct must be unwelcome. The victim's voluntary allowance of the conduct does not necessarily negate liability, because the conduct may still be unwelcome. The gravamen to any sexual harassment claim is whether the sexual advances were unwelcome.14

The Tenth Circuit recently determined that Title VII hostile work environment discrimination applies to customers using the negligence theory of liability under the Restatement (Second) of Agency § 219 (2)(b) in Lockard v. Pizza Hut, Inc.15 The court opined that harassment by customers is analogous to harassment by co-workers. Employers may be held liable if they fail to remedy or prevent a hostile or offensive work environment of which management-level employees knew or, in the exercise of reasonable care, should have known.16

In Lockard, the manager of the Pizza Hut restaurant knew that two male customers were being sexually abusive to a female waitress, Lockhard, and failed to respond to the inappropriate conduct. When Lockhard complained, the manager told Lockhard that she had to continue waiting on the men. Lockhard quit and brought a sexual harassment suit against Pizza Hut.17 The court found that, although there was only a single incident, it was sufficient to create an abusive environment under Title VII. The customers' conduct was severe enough to create an actionable hostile work environment under the negligence standard.18

THE 1998 SUPREME COURT CASES

Prior to the 1998 U.S. Supreme Court session, quid pro quo and hostile work environment established not only that sexual harassment occurred but also the theoretical basis of employer liability. Both have been relegated to theories under which a plaintiff may prove that...