"Let's Be Reasonable" -- Resolving the Ambiguities of the Faragher-Ellerth Affirmative Defense.

• Author: Novak, Jeannine

If employers have acted reasonably to stop and correct supervisor harassment, the defense should be available even if the employee has acted reasonably

THE BIG one hit in 1998. What had rumbled in the lower courts for 12 years--the question of vicarious liability in sexual harassment cases in which the victim's harasser is her supervisor--eventually rose in the U.S. Supreme Court in a wave of seismic proportion as a new level of sexual harassment litigation surfaced. In two 7-2 decisions--Faragher v. City of Boca Raton(1) and Burlington Industries Inc. v. Ellerth(2)--the Court created strict liability in the hostile environment context unless the employer can establish an affirmative defense. The Court's new standard appropriately allots responsibility to both the employer and employee to eliminate severe and pervasive sexual harassment from the workplace.

The aftermath is the affirmative defense, which Justice Souter outlined in Faragher and Justice Kennedy in Ellerth:

The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.(3) Unfortunately, the majority opinions in Faragher and Ellerth do not resound with clarity as to exactly what an employer must do to escape liability for sexually harassing behavior by a supervisor. This was pointed out by the dissenters--Justices Scalia and Thomas--with the latter stating in Ellerth that the majority provided "shockingly little guidance about how employers can actually avoid vicarious liability. Instead, it issues only Delphic pronouncements and leaves the dirty work to the lower courts."(4) A district court judge has remarked, "No court has sough to establish a bright line as to what is or is not reasonable as the term is contemplated in Faragher and Ellerth."(5)

Faragher and Ellerth do little more than create confusion and an abundance of litigation, which has and undoubtedly will continue in the lower courts. Even deeper than the rift between the Supreme Court's majority and dissenters is the split between the circuits as to what is reasonable versus what is unreasonable. Whatever the Court's intent, Faragher and Ellerth did result in one certainty: judicial overload from the volume of litigation that will result in attempting to apply the Supreme Court's ambiguous rulings.

What is the affirmative defense made available to employers? Faragher and Ellerth leave these issues for consideration:

* The meaning and intent of Title VII of the Civil Rights Act of 1964, 42 U.S.C. [sections] 2000 et seq., with regard to sexual harassment and vicarious liability of employers for their supervisors' actions;

* An analysis of the symbiotic prongs of the affirmative defense--the obligations of employers and employees;

* The availability of protection for a reasonable employer who receives a reasonable complaint and promptly remedies the sexually harassing behavior.

SEXUAL HARASSMENT LITIGATION

1. Title VII of the Civil Rights Act of 1964

   The purpose of Title VII is to eradicate discrimination based on race, color, sex, religion, and national origin from the workplace. Title VII does not "prohibit genuine but innocuous differences in the ways men and women routinely interact" with one another, and it is not a "general civility code".(6) Rather, it is designed to address conduct that is so extreme as to amount to a change in the terms and conditions of employment.(7)

   Section 703(a) of Title VII, 42 U.S.C. [sections] 2000e-2(a)(1), forbids an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate any individual with respect to his compensation, terms, conditions, or privileges of employment" based on an individual's protected category status.

   Title VII serves preventive and remedial purposes. While it provides for compensation to individuals who have suffered from unlawful employment discrimination, its the main goal, as recognized by the Faragher Court is to avoid harm.

2. Hostile Environment and Quid Pro Quo Harassment

   In Meritor Savings Bank FSB v. Vinson, the Supreme Court divided sexual harassment claims into two categories--hostile environment and quid pro quo harassment--holding that unwelcome sexual advances that create an offensive or hostile working environment violate Title VII.(8) In establishing a claim of hostile environment, the victim must demonstrate that the harassment affected a term, condition, or privilege of employment.(9) A quid pro quo claim, on the other hand, exists when the harassment is directly linked to the grant or denial of an economic benefit.(10)

   Meritor established standards for actionable sexual harassment in the workplace, as well as employers' vicarious liability for sexual harassment by supervisors or agents. In its opinion, the Court referred to the guidelines of the Equal Employment Opportunity Commission, which provided that an employer is liable for sexual harassment when the employer has actual knowledge of the harassment or if the victim had no reasonably available method for providing the employer with notice of her complaint.(11) The Court rejected a view that an employer with a grievance procedure, which the victim employee fails to invoke, has a defense to liability. This would be considered relevant, but not dispositive. A definitive rule was not issued regarding the absence of notice to the employer as insulation to liability, although, the Court did state that an employer is not automatically liable for the sexual harassment by its supervisors.

   It is important to note that in 1986, when Meritor was decided, the sole remedy available to a victim of sexual harassment was equitable relief.(12) Therefore, establishing when the employer was liable for sexual harassment by its agents was less significant and expensive. Current law, 42 U.S.C. [sections] 1981a(b)(1), provides a victim with the opportunity to recover exemplary, as well as declaratory relief, in disparate treatment cases. To recover punitive damages, plaintiffs must show that "malice" or reckless indifference to the federally protected rights of an aggrieved individual."

3. Faragher and Ellerth

   For the 7-2 majority in Faragher, Justice Souter wrote that "in implementing Title VII it makes sense to hold an employer vicariously liable for some tortious conduct of a supervisor made possible by abuse of his supervisory authority, and that the aided-by-agency-relation principle embodied in [sections] 219(2)(d) of the Restatement [Second of Agency] provides an appropriate starting point for determining liability for the kind of harassment presented here."(13) Dissenting with Justice Scalia, Justice Thomas expressed the view that rather than the "aided-by-agency-relation" standard adopted by the majority, a negligence standard should be used in reviewing sexual harassment by an supervisor.

   In order to reconcile its pronouncement of vicarious liability for supervisors with its earlier holding in Meritor that an employer is not automatically liable for harassment by a supervisor who creates a discriminatory environment, the Court recognized two alternatives to automatic liability: a requirement of proof of an affirmative invocation of supervisory authority by the harasser, and an affirmative defense, even if the supervisor has created the actionable environment. The Court declined to employ the terms "quid pro quo" and "hostile environment" harassment. Instead, it held that with regard to vicarious liability, other factors, not the categories quid pro quo and hostile work environment, are controlling."

   With regard to sexual harassment that culminates in a tangible employment action, such as discharge, demotion or undesirable reassignment, the affirmative defense is not available. However, an affirmative defense is available to employers when no tangible employment action is taken. The affirmative defense allows an employer to escape liability by exercising reasonable care to prevent or correct promptly any sexually harassing behavior, if the complaining employee also unreasonably failed to take advantage of an employer's preventive or corrective action or to avoid harm otherwise.

   Not having the issue before it, the Court declined to issue a "definitive explanation of what conduct short of that culminating in a tangible employment action can be found nevertheless to be aided by the agency relation." It simply reaffirmed that Title VII does not make employers automatically liable for their supervisors' sexual harassment.

   THE NO-FAULT FAULT

   Many questions were left unanswered by the Faragher and Ellerth opinions, such as:

   * When has an employer acted with sufficient reasonableness to satisfy the first prong of the affirmative defense?

   * What constitutes an employee's unreasonably failure to take advantage of an employer's preventive or corrective measures or to avoid harm otherwise?

   * Does an employer who acted reasonably to prevent and...