Employment law.

• Author: Gearty, Lauren P.
• Position: Affirmative defense to vicarious liability

Scope of Faragher-Ellerth affirmative defense to vicarious liability not defined by employer's own sexual-harassment policy--Chaloult v. Interstate Brands Corp., 540 F.3d 64 (1st Cir. 2008)

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee on the basis of sex. (1) In non-tangible employment actions, an employer is vicariously liable for a supervisor's unlawful sexual harassment unless the employer can establish the Faragher-Ellerth affirmative defense: that it acted reasonably to prevent and correct harassment and that the employee did not act reasonably to avoid harm. (2) In Chaloult v. Interstate Brands Corp., (3) the United States Court of Appeals for the First Circuit considered whether a lateral supervisor's knowledge of sexual harassment is vicariously attributable to an employer when the employer's sexual-harassment policy requires all supervisors to report any known misconduct. (4) The court refused to extend Title VII liability to an employer simply because it voluntarily adopted a sexual-harassment policy requiring all supervisors to report sexual harassment. (5)

The plaintiff, Bonnie Chaloult, worked for Interstate Brands Corporation (Interstate) from 1999 until she resigned in August 2005. (6) On August 4, 2005, Chaloult submitted a resignation letter, explaining that she felt uncomfortable working for her immediate supervisor, Kevin Francoeur, because he asked her inappropriate personal questions and demanded information. (7) The letter did not specifically allege that Francoeur sexually harassed her. (8) Upon receipt of this letter, Interstate's department manager promptly discussed the letter with a human resources manager and met with Chaloult to discuss the allegations. (9) At the meeting, Chaloult alleged that Francoeur inappropriately asked her coworker, Jim Anderson, whether he and Chaloult had a sexual relationship. (10) The department manager interviewed all parties involved and, after concluding that Chaloult misinterpreted Francoeur's remark, warned Francoeur against using general profanities in the workplace. (11)

More than a year after her resignation, Chaloult filed a complaint against Interstate in the Federal District Court for the District of Maine for hostile-work-environment sexual harassment in violation of Title VII and the Maine Human Rights Act. (12) Chaloult alleged that from February to August 2005, Francoeur sexually harassed her by commenting about her breasts, making a sexual proposition to her, discussing his personal sexual relations, and making other inappropriate remarks. (13) According to Chaloult, Anderson--a fellow supervisor who also reported directly to Francoeur--was aware of much of the harassment. (14) Although Interstate's sexual-harassment policy placed an affirmative duty on all employees with the title of supervisor to report harassment, neither Chaloult nor Anderson reported the incidents to management. (15)

Chaloult argued that as a matter of law, Anderson's knowledge of the harassment was attributable to Interstate under its own sexual-harassment policy because Anderson was a supervisor within the meaning of the policy. (16) Chaloult claimed that Anderson, who held the title of supervisor, had knowledge of the harassment and failed to fulfill his obligation under the policy to report the harassment to management. (17) As a result of this attributed knowledge, Chaloult asserted that Interstate could not establish the Faragher-Ellerth affirmative defense because Anderson, who acted as Interstate's agent, failed to take proper corrective measures to eliminate the harassment. (18) Interstate moved for summary judgment on grounds that it established the Faragher-Ellerth affirmative defense to vicarious liability. (19) The district court agreed and granted summary judgment in favor of Interstate, finding that Anderson's failure to report the harassment did not create any issue of material fact as to whether Interstate acted reasonably to prevent and correct the sexual harassment. (20) On appeal, the First Circuit affirmed, holding that Interstate's sexual-harassment policy, requiring that all supervisors report any harassment, would not increase its liability under Title VII. (21)

Title VII of the Civil Rights Act of 1964 prohibits gender-based employment discrimination. (22) While Title VII's language appears to limit its protection to economic or tangible discrimination, the Supreme Court interpreted Title VII's protection to extend to sexual harassment in the workplace, including hostile-work-environment sexual harassment. (23) Actionable hostile-work-environment sexual harassment requires a showing that the sexual harassment is so severe and pervasive that it renders an employee's work environment both subjectively and objectively hostile or abusive. (24) In addition to Title VII, an employee may be able to seek protection under his or her state antidiscrimination statute. (25) The terms of state antidiscrimination statutes vary from state to state, however, many are modeled after Title VII. (26)

Courts impose vicarious liability on employers for hostile-work-environment sexual harassment committed by supervisory employees regardless of whether the employer knew of the harassment. (27) Imposing vicarious liability in this context is based on the aided-by-agency relation doctrine, which provides that supervisors, as opposed to low-level employees, are more prone to misconduct because of the special authority employers delegate to them. (28) In companion cases Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Supreme Court carved out a two-part affirmative defense to vicarious liability for actionable hostile-work-environment sexual harassment claims in non-tangible employment actions. (29) First, an employer must demonstrate that it reasonably sought to prevent harassment in the workplace and correct any sexual harassment that occurred. (30) Second, an employer must show that the alleged victim failed to utilize reasonably complaint procedures or otherwise evade the harassment. (31) The policy behind the Faragher-Ellerth affirmative defense is to avoid harassment by encouraging employers to adopt and promulgate adequate sexual-harassment policies and complaint procedures. (32)

The United States Court of Appeals for the Sixth Circuit has considered whether to define the scope of the Faragher-Ellerth affirmative defense by an employer's own sexual-harassment policy. (33) In Clark v. United Postal Service, Inc., (34) the Sixth Circuit held that when an employer places an affirmative duty on all supervisors to report sexual harassment, the court must then determine whether such supervisors, as agents for the employer, exercised reasonable care to correct the harassment. (35) Although the supervisors in Clark held low-to-midlevel positions with no authority over the victim, the court determined that they were still supervisors for Title VII purposes because the employer voluntarily adopted a policy that made all supervisors its agents. (36) Absent the employer's policy, however, the Clark court might have determined that low-to-mid-level supervisors, as opposed to supervisors with immediate or higher authority over the victim, do not constitute supervisors within the meaning of Title VII. (37)

In Chaloult v. Interstate Brands Corp., the First Circuit considered whether an entry-level supervisor's knowledge of sexual harassment is attributable to an employer when its sexual-harassment policy requires all supervisors...