Sexual Harassment Claims Under Georgia Law

• Publication year: 2000
• Pages: 0002

Georgia Bar Journal Volume 6.

GSB Vol. 6, No. 1, Pg. 2. Sexual Harassment Claims Under Georgia Law

Georgia State Bar Journal
Vol. 6, No. 1, August 2000

"Sexual Harassment Claims Under Georgia Law"

By Catherine F. Duclos

The Georgia Court of Appeals has clearly spoken: sexual harassment will not be tolerated in Georgia workplaces. Many employers, particularly small businesses, are unaware of the Court's pronouncements and have failed to take the appropriate steps to rid their workplaces of such conduct These employers leave themselves vulnerable to potentially large damage awards and expensive litigation. Consider the following scenario: Jane worked for ABC Company, a company with ten employees. Jane's supervisor, Bill, began making sexual advances and comments about her body. Bill gave Jane a poor performance review and cut her pay rate in half after she rebuffed his advances. Jane complained to ABC's President, Bob Smith, who told Jane that he knew Bill "had a problem" with women, but Bill was his best salesman. Jane subsequently quit. Bob was not concerned because he had been to a seminar on "personnel law" and he knew that federal discrimination laws apply only to companies with 15 or more employees. Bob was stunned when he received a summons and complaint from a Georgia court where Jane had sued ABC for negligently failing to maintain a workplace free of sexual harassment. He was even more stunned when his attorney told him ABC might be liable. Sexual harassment claimants are turning to Georgia law more frequently. The courts have responded favorably, giving rise to considerable debate among employment lawyers whether the courts have created a cause of action for "sexual harassment." Like so many legal questions, the answer is yes and no. The Georgia Court of Appeals has recognized a legal theory under which workplace sexual harassment may be addressed. The Court has not, however, created a new cause of action. Instead, the Court has used established common law and has recognized a negligence cause of action against an employer who allows sexual harassment to occur in its workplace.1 A sexual harassment plaintiff bringing a negligence claim under Georgia law has several advantages over a federal plaintiff bringing a claim under Title VII of the Civil Rights Act of 1964.2 The Georgia plaintiff may: (1) by-pass the administrative procedures of the Equal Employment Opportunity Commission; (2) take up to two years (instead of 180 days) to file a claim;3 (3) file a claim against an employer with fewer than 15 employees; and (4) avoid Title VII's statutory caps on compensatory and punitive damages. The major disadvantage is that, absent a physical injury, punitive damages may not be available.4

The Respondeat Superior Roadblock

Prior to 1983, attempts to hold employers liable under Georgia law for the harassing conduct of their employees had failed. They failed because the very nature of sexual harassment makes it impossible to establish an employer's liability under the doctrine of respondeat superior.5 As the Court of Appeals has repeatedly explained, sexual harassment is a uniquely "personal" action - one that will never (one would hope) fall within the scope of an alleged harasser's employment.6

The Detour: Cox v. Brazo

In Cox v. Brazo,7 the Georgia Court of Appeals directed sexual harassment claimants to a more appropriate legal theory. In Cox, the plaintiff brought suit against her former supervisor and former employer for assault. She contended that she was injured by the supervisor's sexual harassment in the workplace and that the employer should be held vicariously liable for the supervisor's conduct. The Court rejected the plaintiff's respondeat superior argument holding that the supervisor's actions were not in furtherance of the employer's business; yet, the Court reversed the lower court's grant of summary judgment to the employer. The Court explained: the theory of recovery against the employer here sounds in common law tort, i.e [the employer's] negligence in allowing [the supervisor] to remain in a supervisory position with notice of his proclivity to engage in sexually offensive conduct directed against female employees. Whether a master was negligent in employing an undependable and careless servant is a separate issue from whether an agent is acting within the scope of the master's business. A cause of action for negligence may be stated if the employer, in the exercise of reasonable care, should have known of an employee's reputation for sexual harassment and that it was foreseeable that the employee would engage in sexual harassment of a fellow employee but he was continued in his employment.8

A Georgia "Sexual Harassment" Claim

The Court of Appeals has addressed the issue of workplace sexual harassment on several occasions since Cox. A review of the Court's decisions reveals that the plaintiff must establish the following elements in order to state a claim: (1) that he/she was subjected to sexual harassment;9 (2) that the employer, in the exercise of reasonable care, knew or had reason to know of the employee's proclivity or reputation for sexual harassment; 10 (3) that it was foreseeable the employee would engage in sexual...