Recent developments in employer liability for sexual harassment - Ellerth and Faragher.

• Author: Gunter, Jason L.

The teachings of these cases indicate courts and juries will not look favorably upon employers who fails to take a proactive approach against workplace harassment.

In the December 1997 issue of The Florida Bar Journal, N. James Turner discussed employer liability for sexual harassment in an article, "The Perils of (Reporting and) Not Reporting Sexual Harassment."(1) In this short period of time, the doctrine of sexual harassment has further evolved, necessitating a further discussion of sexual harassment liability in the workplace. During its most recent term, the U.S. Supreme Court addressed and attempted to clarify employer liability for sexual harassment claims, specifically discussing harassment perpetrated by supervisory employees.(2) On June 26, 1998, in the companion cases of Burlington Industries, Inc. v. Ellerth, 1998 U.S. LEXIS 4217 (June 26, 1998), and Faragher v. City of Boca Raton, 1998 LEXIS 4216 (June 26, 1998), the Court held that under Title VII of the Civil Rights Act of 1964, "[a]n employer is subject to liability for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee."(3)

In an earlier decision, Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), the Court first held that employers could be held liable for hostile environment harassment committed by supervisory employees. However, the Meritor Court did not articulate any definitive rules to guide lower courts in resolving this question of employer liability. Instead, the Court simply issued a cryptic directive to the lower courts--that lower courts should be guided in their determinations by the common law of agency as set forth in the Restatement of Agency.(4) Consequently, in the wake of Meritor, the courts were left to create their own esoteric, and often differing, interpretations of how and when agency principles should be applied in hostile environment cases under Title VII. The predictable result was a patchwork of disparate approaches and conflicting decisions among the circuits. Accordingly, the Court granted certiorari in Ellerth and Faragher in order "to address the divergence" among the courts.(5)

Sexual Harassment Theories Under Title VII

Sexual harassment claims arising in the workplace have their genesis in Title VII of the Civil Rights Act of 1964, 42 U.S.C. [subsections] 2000e et seq. Title VII provides, in part, "it shall be an unlawful employment practice for an employer. to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin."(6)

Equal Employment Opportunity Commission (EEOC) Guidelines and judicial decisions interpreting Title VII have, in turn, recognized two distinct species of claims for sexual harassment. One species has been labeled as "quid pro quo" sexual harassment; the other, as "hostile environment" sexual harassment.(7) These two terms--which do not appear in the statutory text of Title Vii--first appeared in academic literature, were later noted by the Supreme Court in Meritor, and eventually found their way into decisions of the Courts of Appeals.(8)

Quid Pro Quo Sexual Harassment

Quid pro quo sexual harassment occurs when 1) an employee is subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors, and 2) submission to the unwelcome advances is an express or implied condition to receiving job benefits or of continued employment. However, in order to establish employer liability for quid pro quo sexual harassment, the employee must establish a third element: the employee's refusal to submit to a supervisor's sexual demands results in a tangible job detriment. Examples of "tangible job detriment" include a refusal to hire, dismissal, denial of a raise or promotion, demotion, withholding or withdrawal of benefits, docking of pay, and undesirable reassignment or transfer resulting in a significant change in an employee's duties.(9) Under the quid pro quo theory, an employer is held strictly liable "for the conduct of the supervisory employees having plenary authority over hiring, advancement, dismissal and discipline...."(10)

Hostile Work Environment Sexual Harassment

The other species of actionable harassment under Title VII--hostile environment harassment--is conceptually different from quid pro quo and is governed by different rules. The main distinguishing feature between the two kinds of sexual harassment is that under the hostile environment theory, the employee need not show a tangible job detriment in order to hold the employer liable under Title VII.

The substantive standards for hostile environment claims were set forth by the Court in Meritor and later reaffirmed in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Under these decisions, sexual harassment is actionable if it is sufficiently "severe or pervasive" to alter the terms and conditions of the plaintiff's employment. A hostile or abusive work environment is created when a reasonable person would find it hostile or abusive and the victim also subjectively perceives it as such. Unlike quid pro quo harassment, the discriminatory alteration in the terms and conditions of plaintiff's employment is "constructive" as opposed to "explicit," and the employee must prove the offending conduct was "severe or pervasive."(11) The sporadic use of abusive language, gender-related jokes, and occasional teasing are not deemed to be severe or pervasive, but rather "ordinary tribulations of the workplace."(12) Moreover, to be considered pervasive, incidents of environmental harassment must be more than episodic; rather, they must be sufficiently continuous and concentrated.(13) Title VII does not prohibit genuine but innocuous differences in the ways men and women continually interact with members of the same or opposite sex, and simple teasing, off-hand comments and isolated incidents, unless extremely serious, will not amount to discriminatory...