God's house, or the law's.

• Author: Goldsmith, Eileen B.
• Position: Employment discrimination and religious harassment

Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997)

Since the federal courts began to recognize harassment claims under Title VII,(1) they have largely agreed that sex-based harassment differed fundamentally from other varieties of harassment. Only in the context of sex-based harassment could an employer condition job benefits on sexual favors. Thus, courts fashioned a special doctrine called "quid pro quo" harassment to account for the apparent uniqueness of this kind of discrimination. The Seventh Circuit recently broke ground in Venters v. City of Delphi(2) by demonstrating that a religious demand fit the job-benefits-for-sex model. In so doing, it has invited other courts to overcome the formalistic barriers between sexual harassment and other forms of harassment, as well as those between Title VII harassment and disparate treatment doctrines.

I

Jennifer Venters had served as a dispatcher in the Delphi, Indiana, police department for nearly six years when a new police chief, Larry Ives, took office. Right away, Ives made it clear that the police department was "God's house," and employees would have to play by God's rules. At first, Ives urged Venters to cleanse her soul by attending his church and viewing religious videotapes. At times, however, he criticized her personal life--she shared a house with another unmarried woman--and accused her of entertaining male police officers in her home with pornographic videos. Ives then accused her of incest and bestiality, and he even suggested that she would be better off killing herself than leading such a sinful life. Finally, he told Venters that she could choose God's way or Satan's--and if she chose Satan's, she could no longer work for the city. Six months after Venters complained about Ives's abuse, he had ginned up enough evidence against her to fire her for inadequate performance.(3)

Venters sued the City of Delphi for religious harassment and discriminatory discharge under Title VII, as well as First Amendment violations.(4) The district court granted the city's motion for summary judgment on all of Venters's claims. On appeal, the Seventh Circuit reversed, holding that Ives's abuse of Venters constituted quid pro quo harassment.(5) For the first time, a court had found quid pro quo harassment in a case that was not about a sexual proposition.(6)

At the time of the court's decision, there were two strains of harassment doctrine under Title VII: quid pro quo and hostile work environment. Quid pro quo doctrine applied to cases of sex-based harassment that included sexual propositions; hostile work environment doctrine applied to all other sex-based harassment claims. "Quid pro quo" denoted the bargain: sexual favors in exchange for job benefits. The doctrine offered plaintiff-friendly standards for proving causation and imputing liability to the employer.(7) Importantly, the plaintiff who proved the sexual bargain needed to show nothing more to prove that she had suffered discrimination on the basis of sex.(8) Hostile work environment plaintiffs, in contrast, had to prove more to merit a finding of discrimination.(9)

Some months after Venters, the Supreme Court decided Burlington Industries v. Ellerth,(10) restructuring harassment doctrine. Although the decision is probably most significant for clarifying the employer liability question in hostile work environment cases,(11) it also shifted the focus in all cases of sex-based harassment from overtly sexual conduct to the victim's....(12) economic injuries. Justice Kennedy wrote for the Court that the categories "quid pro quo" and "hostile work environment" are relevant only for the purposes of determining whether discrimination had taken place and have no bearing on liability.(13) Liability now hinges on whether the victim has suffered a "tangible employment action," such as termination or the loss of a promotion; if so, then the employer is automatically liable.(14) In effect, Ellerth recasts the old quid pro quo doctrine as tangible employment action doctrine. Any case a plaintiff could have won under the old quid pro quo regime would now be brought as a tangible employment action claim.

Under the new tangible employment action doctrine, the lower courts are still applying the substantive (non-liability) elements of the old quid pro quo and hostile work environment doctrines in order to determine whether discrimination has taken place.(15) Plaintiffs who can show sexual propositions will likely still benefit from a presumption of causation. Ellerth does not require, however, that such presumptions be limited to cases about sexual propositions. The Ellerth Court wrote that the term "quid pro quo" was relevant merely to distinguish "cases involving a threat which is carried out [from those involving] offensive conduct in general."(16) This distinction should be relevant whether the harassment is based on sex or on any other protected status. Venters anticipated this doctrinal development, arguing for a broader understanding of quid pro quo. As such it complements Ellerth and demonstrates Ellerth's potential for addressing different kinds of discrimination.

II

Prior to Venters, the quid pro quo model seemed so inextricable from sexuality that its relevance to other cases was almost entirely overlooked. One district court had speculated that quid pro quo analysis might apply to some cases of religious harassment, but it proceeded to apply a hostile work environment theory to the case before it.(17) The First Circuit even held that there could be no such thing as race-based quid pro quo harassment.(18)

Despite this context, the Venters court easily saw the case as quid pro quo harassment. The court held that conditioning Venters's continued employment on her adoption of a set of religious beliefs "fit neatly into the quid pro quo framework."(19) Judge Rovner reduced the analysis to its essentials: "Ives did not ... simply share his religious beliefs with [Venters], but instead he ... made adherence to his set of religious values a requirement of continued employment in the police department."(20) Thus, the easiest analogy to quid pro quo doctrine's "sleep with me, or you're fired" was "adopt my religious views, or you're fired."(21) Because they are not job-related, these demands are, on their face...