A Modest Proposal: the "reasonable Victim" Standard and Alaska Employers' Affirmative Defense to Vicarious Liability for Sexual Harassment

• Citation: Vol. 17
• Publication year: 2000

§ 17 Alaska L. Rev. 297. A MODEST PROPOSAL: THE "REASONABLE VICTIM" STANDARD AND ALASKA EMPLOYERS' AFFIRMATIVE DEFENSE TO VICARIOUS LIABILITY FOR SEXUAL HARASSMENT

Alaska Law Review
Volume 17
Cited: 17 Alaska L. Rev. 297

A MODEST PROPOSAL: THE "REASONABLE VICTIM" STANDARD AND ALASKA EMPLOYERS' AFFIRMATIVE DEFENSE TO VICARIOUS LIABILITY FOR SEXUAL HARASSMENT

Kamla Alexander(fn*)

I. INTRODUCTION

II. TITLE VII

III. ALASKA SUPREME COURT PRECEDENT

IV. THE "REASONABLE VICTIM" STANDARD

A. Federal Case Law

B. The Alaska Supreme Court

V. EMPLOYERS' AFFIRMATIVE DEFENSE TO VICARIOUS LIABILITY

A. Federal Case Law

B. The Equal Employment Opportunity Commission ("EEOC")

C. The Alaska Supreme Court

VI. CONCLUSION

FOOTNOTES

This Note examines the Alaska Supreme Court's nascent interpretation of Alaska's anti-discrimination statute in sexual harassment cases. The Note begins by analyzing the history of sexual harassment case law in Alaska. The Note then discusses the benefits of applying the "reasonable victim" standard in the Alaska Supreme Court's determinations of the offensiveness of an employer's conduct by analyzing relevant law review articles, federal sexual harassment decisions, and a comparison of three recent Alaska Supreme Court decisions. The Note next discusses the importance of allowing Alaska employers an affirmative defense to vicarious liability for the sexual harassment perpetrated by their employees. The author concludes that the Alaska Supreme Court should adopt a "reasonable victim" standard for determinations of the offensiveness of an employer's conduct and allow employers an affirmative defense to sexual harassment claims.

I. INTRODUCTION

Most state courts have extensive case law that guides their interpretation of state anti-discrimination statutes in sexual harassment cases. By contrast, the Alaska Supreme Court began its interpretation of what conduct constitutes sexual harassment under [*pg 298] Alaska Statutes section18.80.220(a) ^[1] only in 1996 with French v. Jadon, Inc. ^[2] In French, the supreme court noted that it would not decide whether to adopt the "reasonable victim" standard, but in a footnote discussing this issue, the court cited sources that mostly adopted some kind of individualized standard for reasonableness determinations. ^[3] In order to fulfill the Alaska Supreme Court's goal of shaping the future of Alaska sexual harassment law, this Note proposes that the Alaska Supreme Court adopt the "reasonable victim" standard in determinations of the offensiveness of an employer's conduct. The "reasonable victim" standard would improve upon the existing "reasonable person" standard by including the victim's gender in the analysis. Male victims of sexual harassment would be assessed under a "reasonable male" standard, while female victims would be assessed under a "reasonable woman" standard. Second, this Note proposes that the Alaska Supreme Court allow Alaska employers to assert a two-pronged affirmative defense to vicarious liability for the sexual harassment claims of their employees. A similar defense was adopted by the United States Supreme Court in Burlington Industries v. Ellerth ^[4] and Faragher v. City of Boca Raton. ^[5] These two proposals would allow the Alaska Supreme Court to adhere more closely to the Alaska Legislature's goal by giving a "broader interpretation" ^[6] to Alaska Statutes section 18.80.220 than its federal counterpart Title VII, ^[7] in furthering the goal of the state of Alaska to eradicate sexual harassment from the workplace. The incorporation of the "reasonable victim" standard and an affirmative defense for Alaska employers would also help to prevent harm to female victims of sexual har- [*pg 299] assment and, at the same time, afford more protection for Alaska employers from costly litigation.

Because this proposal applies only to Alaska employers and Alaska state courts, for the purposes of the discussion of whether the Alaska Supreme Court should allow employers to state an affirmative defense to vicarious liability for the sexual harassment claims of their employees, this Note refers to employers and employees as defined in Alaska Statutes section 18.80.300. ^[8] The Alaska Supreme Court has determined that Alaska's anti-discrimination statute, Alaska Statutes section 18.80.220, is "'modeled on' the federal law, thus making federal case law relevant." ^[9] Therefore, in setting forth this proposal, this Note makes liberal use of federal case law as well as law review articles interpreting Title VII for sexual harassment claims.

This Note proceeds in four parts. Part I briefly traces the historical development of sexual harassment law under Title VII of the Civil Rights Act of 1964. ^[10] Part II analyzes the beginning of sexual harassment case law in the Alaska Supreme Court by discussing the court's decisions in French v. Jadon, Inc., ^[11] VECO, Inc. v. Rosebrock ^[12] and Norcon, Inc. v. Kotowski. ^[13] Part III analyzes the benefits of applying the "reasonable victim" standard in the Alaska Supreme Court's determinations of the offensiveness of an employer's conduct. This analysis is done through a discussion of relevant law review articles, federal sexual harassment decisions, ^[14] and an analysis of the Alaska Supreme Court's decisions in French, [*pg 300] VECO, and Norcon. Finally, Part IV recommends allowing Alaska employers an affirmative defense to vicarious liability for the sexual harassment claims of their employees. This recommendation is based on the affirmative defense set forth by the United States Supreme Court in Ellerth and Faragher and the Equal Employment Opportunity Commission's ("EEOC") past and revised positions on employer liability.

II. TITLE VII

Title VII of the Civil Rights Act of 1964 makes it "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 race, color, religion, sex, or national origin." ^[15] The primary purpose of the Civil Rights Act was the "elimination and remediation of race-based employment decisions." ^[16] As a result, "sex" was not a protected class in the original bill. In fact, only two days prior to the House of Representatives' vote on the bill, Representative Howard W. Smith, a southern Democrat, proposed that the bill be amended to add "sex" as one of the protected classes in order to defeat the bill. ^[17] Although "humorous debate, later enshrined as 'Ladies Day in the House'" surrounded the amendment, it survived debate and was incorporated into the Civil Rights Act passed by Congress. ^[18] However, as a consequence of the amendment's last minute addition, "[v]irtually no legislative history provides guidance to courts interpreting the prohibition of sex discrimination." ^[19] Because of the lack of legislative history defining sex as a protected class, "difficulty arose in interpreting the extent to which the Act protected women against sexual harassment." ^[20] Determining the contours of sex discrimination has largely been left to the federal courts, guided by instruction from the Supreme Court and the EEOC.

[*pg 301]

III. ALASKA SUPREME COURT PRECEDENT

In 1996, in French v. Jadon, Inc., ^[21] the Alaska Supreme Court decided its first case defining sexual harassment in the employment context. Appellant Shelly French brought a sexual harassment suit against her former employer Jadon, Inc., owner of Chilkoot Charlie's, a popular nightclub in Anchorage. ^[22] French alleged she was wrongfully terminated because she refused to date her supervisor's brother and that her employer's conduct "in 'requiring' her to 'engage in unethical and illegal activities,' constituted sex discrimination" under Alaska Statutes section 18.80.220(a)(1) and(4). ^[23] In its discussion, the court defined quid pro quo sexual harassment as "when an employer conditions employment benefits on sexual favors." ^[24] The court held that the superior court did not err in granting Jadon's summary judgment motion seeking dismissal of French's quid pro quo sexual harassment claim. ^[25] In its discussion of French's hostile work environment claim, the court noted that a hostile work environment is created by "[c]onduct which unreasonably interferes with work performance [that] can alter a condition of employment and create an abusive working environment." ^[26] The court held that French failed to articulate clearly her hostile work environment claim. ^[27] Accordingly, the court affirmed the superior court's grant of summary judgment. ^[28] The court declined to decide whether to adopt a "reasonable woman" or a "reasonable victim" standard for determinations of employee sexual harassment claims. ^[29] The court also noted that Title VII was the "federal counterpart" to Alaska Statutes section 18.80.220. ^[30] The court noted, however, that it will "consider federal precedent for guidance" when deciding anti-discrimination cases. ^[31]

In 1999, the Alaska Supreme Court decided two cases dealing with sexual harassment in the employment context: VECO, Inc. v. [*pg 302] Rosebrock ^[32] and Norcon, Inc. v. Kotowski. ^[33] The court held that Alaska employers could be held vicariously liable for their employees' sexual harassment claims under Alaska Statutes section 18.80.220(a). ^[34] Although the cases, particularly VECO, ^[35]...