Title VII's retaliation jurisprudence: litigation despite Faragher and Ellerth.

• Author: Doi, Karyn A.
• Position: Sexual harassment claims

The Supreme Court's analysis of hostile work environment and an affirmative defense for employers should be used also in employer retaliation cases

WHETHER because of highly publicized incidents or small-scale awareness programs organized by employers or unions, sexual harassment claims appear to have infinitely multiplied in the last few years.(1) Although this has led to a significant amount of case law, legislation and commentary, there still are areas that the courts and Congress are struggling to define.

The Supreme Court issued two holdings in 1998, Faragher v. City of Boca Raton(2) and Burlington Industries Inc. v. Ellerth,(3) in an effort to clarify employer liability and to support prevention and education programs suggested in the guidelines of the U.S. Equal Employment Opportunity Commission (EEOC).(4) The Court imposed vicarious liability on employers for their supervisors' tangible employment actions, basing its decision on agency principles. But in cases in which no tangible action occurs, the Court allowed employers to assert a two-part affirmative defense--that they "exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

On one hand, the imposition of vicarious liability increases the stakes for employers who fail to take pro-active roles in resolving sexual harassment claims in the workplace. On the other hand, however, they are allowed an affirmative defense. This result promotes the establishment of awareness programs and dispute resolution programs in the workplace to resolve claims that, if unused by the claimant, may lead to a denial of legal relief.

That employers are going to improve existing or implement new anti-discrimination programs no doubt was the focus of the June 1999 EEOC guidelines and law review articles outlining the contents of what a successful plan should contain in light of Faragher and Ellerth.(5) It also is likely that employers, motivated by desires to avoid potentially significant financial liability and soured reputations, will find alternative ways to prevent employee concerns from escalating to the point of litigation, as well as to evade litigation all together. Because of the increasing popularity of mediation, it is not surprising that the awareness of it and its use mediation has increased.(6) The EEOC's successful 1993 pilot mediation project, which focused on resolving discrimination disputes, among them sexual harassment claims, bolstered the credibility of the process.(7)

The mediation process prides itself because of its non-adversarial method of allowing the parties to structure there own resolution of the dispute without the added time, expense and emotional distress of litigation. Mediation also is thought to be appealing because of its cost effectiveness, efficiency, confidentially, flexibility and sensitivity.(8)

While there are several reasons for mediation's popularity and growth, there are valid criticisms of its use as a method to resolve sexual harassment claims. Mediation can be beneficial for the immediate parties involved, but it poses a broader problem by hindering the "orderly development of a coherent sexual harassment jurisprudence," particularly with respect to deterring retaliatory conduct from the harasser after a sexual harassment grievance is filed.(9) Although mediation's intent to prevent future sexual harassment through an educative process is noble, clarifying the employer liability standard in sexual harassment claims through adjudication is more effective in deterring future unwanted conduct and encouraging the filing of grievances. Litigation helps to shape societal guidelines for appropriate conduct in the workplace. Litigation of retaliation in sexual harassment claims should be considered more closely since development of the laws through the court system not only aids in the clarification of the law, but also provides individual claimants better protection.

STANDARDS OF LIABILITY

1. Faragher and Ellerth

   In Faragher and Ellerth, the Supreme Court imposed vicarious liability on employers for the actions of employees only if there was tangible employment action--that is, an actionable hostile work environment "created by a supervisor with immediate (or successively higher) authority over the employee." Sexual harassment causes of action are categorized as "quid pro quo" harassment or "hostile work environment" harassment.(10) Hostile work environment cases do not require a specific demand for sexual favors.

   The Court held in Faragher and Ellerth that based on agency principles, a supervisor's actions that results in tangible employment action is sufficient to hold an employer vicariously liable because it is only a supervisor or another person acting with the authority of the employer who can cause a tangible employment action. A "tangible employment action" was defined as "a significant change in employment status, such as hiring firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."

   In contrast, in cases where there is no tangible employment action--hostile work environment claims--the Court granted employers an affirmative defense, subject to proof by a preponderance of the evidence. The affirmative defense, unavailable where the harassment results in tangible detriment to the victim-employee, consists of two elements: (1) the employer exercised "reasonable care to prevent and correct promptly any sexually harassing behavior," and (2) the claimant "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

   The Court added that an employer's anti-harassment policy and grievance procedures would be considered in addressing the first part of the defense. The employee's failure to use the grievance procedures provided by the employer is not the only factor that may be considered in addressing the second part of the defense, however, although that failure was said usually to suffice to satisfy the employer's burden.

   The Court's holdings seemed to be positive for both defending employers and victimized employees.(11) By imposing vicarious liability on the employer, the decisions supported victims of sexual harassment, while alerting and penalizing employers who have ineffective or no anti-discrimination policies and programs. The decisions supported employers who have instituted effective anti-discrimination plans and assisted the EEOC in its efforts to aid employers in eradicating discrimination in the workplace.

   In fact, the EEOC's June 1999 guidelines issued in response to and in support of Ellerth and Faragher concluded that they "create an incentive for employers to implement and enforce strong policies prohibiting harassment and effective complaint procedures."(12) That the Court focuses on anti-discrimination plans as ways to mitigate liability for sexual harassment or avoid it all together will motivate employers to improve existing policies and programs or, at least, implement plans where they are lacking. The success of the EEOC's mediation pilot program to address discrimination, including sexual harassment in the workplace, and the recent increase in the EEOC's budget for the implementation of mediation programs further persuades employers to incorporate such programs into their company grievance procedures.

   However, the lack of rule-making authority and weak political support hinder the agency's ability to be truly successful in aiding the eradication of discrimination in the workplace, particularly sexual harassment.(13) Not only has the EEOC been without a chair or a full commission at times, reductions in budget and staff have resulted in severe backlogs. And even when a claim is reviewed and a finding of cause is issued, that determination is not entitled to any weight in the...