Finding the appropriate standard for employer liability in Title VII retaliation cases: an examination of the applicability of sexual harassment paradigms.

• Author: Eddy, Corbin Margery

1. INTRODUCTION

   As society's recognition and understanding of sexual harassment and its impact have evolved in recent years, the law has struggled to reflect and respond to these developments.(1) One area that has seen recent alteration is the standard of employer accountability for the illegal conduct of its agents.(2) The Supreme Court offered guidance first in Meritor Savings Bank, F.S.B. v. Vinson,(3) by recognizing two types of sexual harassment.(4) Most recently, the Court's decisions in Burlington Industries, Inc. v. Ellerth(5) and Faragher v. City of Boca Raton(6) signaled change by clarifying their intentions as expressed in the Meritor opinion.(7) All of these decisions address the specific concern of employer liability for sexual harassment; none directly confront employer liability regarding another Title VII violation, namely, retaliation.(8)

   Title 42 [sections] 2000e-3(a) makes it unlawful for an employer "to discriminate against any of his employees ... because [s]he has opposed any practice, made an unlawful employment practice ... or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."(9) This provision "permit[s] employees to pursue, without fear of retaliation, the statutory procedural mechanisms designed for the vindication of their rights,"(10) and creates a separate cause of action against an employer for retaliatory acts against employees who file Title VII complaints or support the complaints of others.(11) Thus, a claimant who successfully proves her retaliation case can recover against her employer, even if her sexual harassment claim fails.(12)

   Courts have determined the allegations required to establish a prima facie case for retaliation. Although each circuit has developed its own standard, the elements are fairly consistent. A claimant must show that (1) she has participated in an action protected by the statute; (2) she has suffered an adverse employment action, and; (3) there is a causal connection between the protected behavior and the adverse employment action.(13) Some circuits explicitly require the claimant to show that the employer had knowledge that the employee participated in a protected activity.(14)

   Unresolved in the area of retaliation law is the standard for employer liability.(15) In the sexual harassment context, the few courts to address this issue have struggled to discern the appropriate standard of employer liability for the retaliatory acts of supervisory personnel.(16) Despite the paucity of judicial authority, all of the existing decisions rely on paradigms from the sexual harassment arena.(17)

   This Comment seeks to address the impact of the Supreme Court's new guidance for employer liability in sexual harassment claims in the retaliation context. Part II of this Comment will explore the development of the standard for employer liability in sexual harassment cases, including the refinement of the standard through recent Supreme Court decisions in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton.(18) Part III will examine the application, in decisions prior to Burlington Industries and Faragher, of the sexual harassment paradigm for employer liability to the retaliation context and will make predictions regarding its continued application.(19) Part IV will address the split in authority over the proper meaning of the "adverse employment action" requirement for a prima facie case of retaliation and will conclude by advancing several reasons for the uniform adoption of one meaning, particularly in light of the new Supreme Court guidance.(20)

2. EMPLOYER LIABILITY FOR SEXUAL HARASSMENT

   1. The Development of Dual Standards

      In 1980, the Equal Employment Opportunity Commission (EEOC) issued its Guidelines on Discrimination Because of Sex (Guidelines), which defined sexual harassment under Title VII and outlined the EEOC's position on employer liability should harassment be proven.(21) The Guidelines identified two types of sexual harassment: quid pro quo and hostile environment.(22) Quid pro quo sexual harassment occurs when "submission to or rejection of ... [unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature] by an individual is used as the basis for employment decisions affecting such individual."(23) Hostile environment harassment transpires when the above-mentioned conduct "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."(24) In Meritor, the Supreme Court adopted these definitions and noted that while the Guidelines themselves were not controlling upon the courts, they were an appropriate resource upon which courts could rely.(25)

      In a post-Meritor policy statement, the EEOC distinguished between the two types of sexual harassment in determining an employer's liability and examined the Meritor Court's handling of this subject.(26) According to the EEOC, "[a]n employer will always be held responsible for acts of `quid pro quo' harassment."(27) The EEOC, and courts adhering to this view, held that "[w]here a supervisor exercises authority delegated by the employer to make employment decisions, the supervisor's actions are properly imputed to the employer, without regard to whether the employer knew of the supervisor's discriminatory intent or whether the supervisor had actual authority to discriminate on that basis."(28)

      With regard to hostile environment harassment, an employer is not automatically liable under Title VII.(29) The Supreme Court in Meritor did not specify how liability will arise, but directed lower courts to seek guidance from agency principles.(30) While there are multiple agency-based theories under which employers can be held accountable for harassment by their employees, "[e]mployer liability for a hostile environment most often stems from a negligent failure to prevent or remedy sexual harassment."(31) The EEOC Guidance provided that "[t]he initial inquiry should be whether the employer knew or should have known of the alleged [conduct]. If actual or constructive knowledge exists, and if the employer failed to take immediate and appropriate corrective action, the employer would be directly liable."(32)

      In sum, there are two key differences between hostile environment and quid pro quo harassment claims. First, to establish a claim for hostile environment harassment, the employee need not prove a tangible job detriment to hold the employer liable.(33) Instead, a hostile environment claimant must show a "`constructive'" alteration in the terms and conditions of her employment, as opposed to the "`explicit'" job detriment that establishes quid pro quo claims.(34) Second, employer liability under both theories rests on the degree to which an agent's actions can be attributed to the employer.(35) Generally, under hostile environment, the employer is held to a negligence standard, while under quid pro quo, strict liability attaches.(36) The different liability standards for the two types of sexual harassment reflect the efforts by courts to apply the appropriate agency principles to each.(37)

   2. The Creation of a Single Standard

      With the decisions in Faragher and Burlington Industries in June 1998, the Supreme Court suggested that lower courts and commentators had expanded the applicability of the terms "quid pro quo" and "hostile environment" beyond their intended utility when they were adopted from the Meritor decision.(38) The Faragher case involved claims by a former city lifeguard that a supervisor had sexually harassed her.(39) The plaintiff resigned without formally reporting the behavior to higher officials, thus presenting the Court with a hostile environment claim devoid of any adverse employment consequences to the victim.(40) While the employer had adopted a sexual harassment policy, it was never disseminated to the group of employees to which the plaintiff belonged.(41)

      In Burlington Industries, the Court faced a similar fact pattern, where an employee quit her job after being subjected to "repeated boorish and offensive remarks and gestures" by a supervisor, and brought suit against her employer.(42) Similarly, the plaintiff did not report the harassment to authorities until some time after leaving.(43) The plaintiff did, however, know that the company had a policy against sexual harassment.(44) The Court characterized the supervisor's behavior as hostile environment harassment that did not result in adverse, tangible job consequences.(45)

      In discussing the appropriate standard for employer liability for sexual harassment by employees, the Court explained that the principle purpose of the quid pro quo/hostile environment distinction is to illustrate that Title VII can be violated "by either explicit or constructive alterations in the terms or conditions of employment and to explain the latter must be severe or pervasive."(46) The Court did not intend the categories to determine an employer's liability for discrimination by employees.(47) In the joint decisions, the Court articulated the proper standard for determining employer liability for sexual harassment by a supervisor as follows:

      An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages.... 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 or to avoid harm...