If you grab the honey, you better have the money: an in-depth analysis of individual supervisor liability for workplace sexual harassment.

• Author: Pignotti, Anthony D.

Meet Jane Doe. Jane is employed as a controller by a small corporation. She is the only woman in an eight-member finance department. Jane works directly for the company's chief financial officer ("CFO"). The CFO has been with the company for some time and manages it with an "old boys' club" mentality. The men in the finance department frequently make lewd jokes, obscene gestures, and offensive comments toward Jane. Not only is this behavior tolerated, but the CFO himself frequently engages in the unwelcome, sexually charged conduct. As a result, Jane, the only woman in the department, feels extremely threatened. After following the appropriate procedures set forth in the company's employee handbook, Jane concludes that nothing seems to have changed. Jane still feels threatened and particularly helpless, as nothing has been done to help alleviate her problems. Jane has filed a claim with the Equal Employment Opportunity Commission and wants to bring a lawsuit against the company. She also desires to bring a suit against the company's CFO in his individual capacity, which would provide her with a fuller sense of vindication. Unfortunately for Jane, her latter cause of action will likely not be recognized in either federal or state court)

INTRODUCTION

The type of sexual harassment described in the previous example is not a new phenomenon in the workplace. (2) It has likely existed since women entered the workplace. (3) Liability for workplace sexual harassment, however, is a relatively recent development in the law. (4) Although lower courts have recognized this cause of action since the mid-1970s, (5) it was not until 1986 when, in the case of Meritor Savings Bank v. Vinson, (6) the Supreme Court of the United States officially recognized sexual harassment as unlawful discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964 ("Title VII"). (7) The Supreme Court recognized that an employer could be held liable for sexual harassment. (8) However, due to an incomplete factual record, it declined to issue any definitive rules for whether this statute extended liability to the supervisor in his individual capacity for his own acts of sexual harassment. (9) This refusal initially led to a cluttered and confused body of law in the lower federal courts. (10) Today, however, there is a consensus among federal circuit courts that liability for acts of sexual harassment does not extend to the supervisor in his individual capacity under Title VII. (11)

This reluctance to hold supervisors individually liable for acts of sexual harassment has also carried over to the state courts. Following Congress's enactment of the Civil Rights Act of 1964, nearly every state followed suit and enacted its own employment discrimination law. (12) Substantively, these state statutes proscribe most of what is covered under Title VII, although the actual language employed by the statutes varies greatly. (13) Nearly every state that has adopted a civil rights statute has held that an employer may be held liable under the statute for sexual harassment. (14) However, taking the lead from the federal courts" interpretations of Title VII, most states have been reluctant to hold supervisors individually liable for their acts of sexual harassment under their respective civil rights statutes. (15)

Despite this majority view that supervisors cannot be held individually liable for their acts of workplace sexual harassment, several state courts have taken a divergent view. (16) The most recent state court to break the trend of denying individual supervisor liability is the Michigan Supreme Court. In its June 1, 2005, decision of Elezovic v. Ford Motor Coo., (17) the court rejected the federal courts' reliance on their own interpretations of the "object" and "policy" behind Title VII in refusing to hold supervisors liable in their individual capacity and held that under the Elliot-Larsen Civil Rights Act, (18) Michigan's version of Title VII, a supervisor could be held liable in his individual capacity for acts of sexual harassment. (19)

This minority view, most recently exemplified by Michigan, has given reason to reexamine the federal district courts' interpretations of Title VII. (20) This Note argues that the federal courts have erred and that Title VII should be read to impose liability upon the supervisor in his individual capacity for acts of sexual harassment. After providing a brief summary of sexual harassment under Title VII of the Civil Rights Act of 1964, Part I examines the various rationales behind the federal courts' refusal to hold supervisors individually liable under Title VII. Part II of this Note addresses the handful of state court decisions that have found individual supervisor liability under their respective sexual harassment statutes, focusing specifically on the recent Elezovic decision. Part III examines and critiques the various arguments set forth by the federal courts for declining to hold a supervisor liable for sexual harassment under Title VII and offers other arguments in favor of extending liability under Title VII to supervisors in their individual capacity. This Note ultimately concludes that the federal courts have erred in refusing to hold a supervisor individually liable for acts of sexual harassment under Title VII and that they ought to reexamine their interpretations and enforcement of the law.

1. FEDERAL COURT DECISIONS

   Title VII of the Civil Rights Act of 1964 states that "[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." (21) Initially, courts held that Title VII's proscription of sex discrimination covered only disparate treatment claims, such as applicants being refused employment because of their sex when the applicants are otherwise qualified for the position. (22) More recently, however, courts have come to interpret sex-based discrimination in violation of Title VII to include sexual harassment. (23)

   Sexual harassment is generally defined as "[a] type of employment discrimination consisting in verbal or physical abuse of a sexual nature." (24) This verbally or physically abusive conduct is understood to consist of unwanted sexual advances, requests to perform sexual acts, and other verbal or physical conduct of a sexual character. (25) The U.S. Supreme Court has recognized two forms of sexual harassment: quid pro quo and hostile work environment. (26) Quid pro quo sexual harassment occurs when an applicant or current employee is subject to an adverse employment decision for refusing to satisfy a sexual demand. (27) Hostile work environment sexual harassment occurs when a work environment is created in which an employee is subject to unwanted verbal or physical conduct on the basis of her sex. (28) In order for such a hostile or abusive work environment to exist, the abusive behavior must be sufficiently severe or pervasive. (29)

   The debate over whether a supervisor who engages in sexual harassment should be individually liable stemmed primarily from the issue of whether a supervisor is considered an "employer" within the meaning of Title VII. (30) Title VII defines the term "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." (31) The debate concerning the individual liability of the supervisor surrounds the "any agent" language. (32)

   As previously stated, the Supreme Court has never explicitly determined whether individual liability for the supervisor exists under Title VII. (33) In declining to rule on whether the scope of "employer" liability includes individuals, the Supreme Court stated that the lower courts should be guided by agency principles. (34) Rather than actually providing guidance, this instruction has confused the matter all the more. The federal circuit courts that use what they believe to be agency law actually utilize the doctrine of respondeat superior to exclude supervisors from liability under Title VII. (35) In the case of Miller v. Maxwell's International, Inc., for example, the Ninth Circuit rejected the argument that a supervisor could be held individually liable for sexual harassment. (36) After recognizing that it is plausible to reason that supervisors and other agents of an employer are statutory employers under the "agent"

   language in the definition of "employer," the court, quoting the district court, concluded that "the obvious purpose of this [agent] provision was to incorporate respondeat superior liability into [Title VII]." (37) Without any further explanation of respondeat superior, the Ninth Circuit concluded that a supervisor cannot be held individually liable for sexual harassment under Title VII. (38) Similarly, in Grant v. Lone Star Co., the Fifth Circuit concluded that no individual liability under Title VII exists for the supervisor. (39) Relying on the Ninth Circuit's reasoning in Miller, the court determined that "[T]itle VII does not permit the imposition of liability upon individuals unless they meet [T]itle VII's definition of 'employer,'" which the court held did not include agents of the employer. (40)

   Other federal circuit courts attempt to resolve this issue by relying on what they perceive to be the real intention of Congress in enacting Title VII. (41) These courts, ignoring what they acknowledge to be the plain language of the statute, interpret Title VII on the basis of what they believe to be the policy and purpose of the statute. (42) In the case of Tomka v. Seller Corp., for instance, the Second Circuit determined that there was no individual liability under Title VII. (43) The court acknowledged that, under what it grudgingly referred to as "a...