Learning the new rules of sexual harassment: Faragher, Ellerth and beyond.

• Author: Starkman, Paul E.

Employers may be hard put to comply with all the standards raised, but employees also may find it difficult to overcome some barriers

Last year in two cases decided the same day--Faragher v. City of Boca Raton(1) and Burlington Industries Inc. v. Ellerth(2)--the U.S. Supreme Court created a new set of rules to govern employer liability for sexual harassment by supervisors. For the first time, the Court held that an employer can be vicariously (that is, strictly) liable for the actionable harassment by a supervisor that involves a tangible employment action.

Vicarious liability can occur even though the employer did not know about the supervisor's harassment and took prompt remedial action to end the harassment after learning of it.(3) However, if the supervisor's harassment did not result in the employee suffering a "tangible employment action," an employer can avoid liability if it can establish an affirmative defense that (1) it took reasonable care to prevent and correct any sexual harassment, and (2) the employee unreasonably failed to take advantage of the employer's preventive or corrective measures or avoid harm otherwise.

In establishing these new rules, the Court applied agency principles from Section 219 of the Restatement (Second) of Agency, under which, when a supervisor is "aided in accomplishing the [harassment] by the agency relationship," an employer can be automatically liable for the supervisor's harassment. The Court applied this "aided" form of vicarious liability, in part, because, it stated in Faragher, supervisors' "authority enhance[s] their capacity to harass and ... the employer can guard against their misbehavior more easily because their numbers are by definition fewer than the numbers of regular employees."

Employers now face the prospect of strict liability when the following elements are present: (1) "actionable harassment" (2) involving a "tangible employment action" (3) "at the hands of" (4) a "supervisor." Now employers must learn the Supreme Court's new rules on sexual harassment or face the prospect of strict liability.

"ACTIONABLE HARASSMENT"

Under the new standards, the first question will be whether the conduct involved "actionable harassment."

1. Quid Pro Quo and Hostile Work Environment

   Faragher and Ellerth change the previously articulated standards for determining when actionable harassment exists. As subsequent cases have recognized, the Court "eliminated the substantive distinction between the judicially created `quid pro quo' and `hostile work environment' labels for sexual harassment claims under Title VII."(4) Specifically, Justice Kennedy stated for the Court in Ellerth, "The terms quid pro quo and hostile environment are helpful, perhaps, in making a rough demarcation between cases in which threats [to retaliate based on the victim's response to sexual advances] are carried out and those where they are not or are absent altogether, but beyond this are of limited utility."(5)

   Under, the Supreme Court's new rules, in a quid pro quo case, "when a plaintiff proves that a tangible employment decision resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII." However, if the claim involves only unfulfilled threats, "it should be categorized as a hostile work environment claim."

   In Ellerth, the plaintiff worked in a two-person office in Chicago and was supervised by her office colleague, who in turn reported to a mid-level manager in New York. The manager made sexual advances to Ellerth and when she did not respond favorably, he warned her that "I could make your life very hard or very easy at Burlington." She tried to make out a quid pro quo case by asserting that the mid-level manager made threats in connection with his sexual advances, but the Court held that her claim was not a quid pro quo, but a hostile work environment, claim.

   In contrast, Faragher was a classic "hostile work environment" case. The plaintiff was a female lifeguard employed by the City of Boca Raton, Florida. She complained that her supervisors made lewd comments, touched her in offensive ways, and engaged in other hostile conduct.

   Despite these factual disparities, the Court held that both were "hostile work environment" claims. This meant that the plaintiffs had to show that the conduct was severe or pervasive, objectively and subjectively offensive, unwelcome, because of the plaintiff's sex, and occurred within the relevant time.

   Lower courts have followed the Supreme Court's lead by narrowly defining quid pro quo harassment. For example, in Johnson v. Brown, a post-Faragher/Ellerth case in the U.S. District Court for the Northern District of Illinois, the plaintiff, a female security guard, testified that she consented to sex with her supervisor because she believed it was necessary to keep her job. The court held that in light of Ellerth, the claim was not quid pro quo but a hostile work environment claim that required a showing of severe or pervasive conduct.(6)

2. "Severe or Pervasive" Conduct

   In Faragher and Ellerth, the Supreme Court reaffirmed that a hostile work environment claim requires a showing of severe or pervasive conduct, but plaintiffs need not prove that the harassment adversely affected their work performance or inflicted psychological injury.(7) Since Faragher and Ellerth, however, lower courts have continued to struggle with the question of when objectionable conduct becomes sufficiently severe or pervasive to create an actionable hostile work environment.

   Post-Faragher/Ellerth courts have rejected hostile work environment claims because the conduct was not sexual in nature, was not directed at a particular gender, or was not sufficiently severe.(8) In Adusumilli v. City of Chicago,(9) despite the plaintiff's allegations that co-workers stared at her breasts, made vague comments, poked at her buttocks, and mentioned another woman's low-cut shirts, the Seventh Circuit held that the alleged conduct did not rise to the level of actionable sexual harassment. Likewise, in Kendrick v. Country Club Hills Board of Education No. 160,(10) a federal district court in Illinois held that a teacher's allegations that her principal told her that he "had feelings for her" and implied that certain favors by her would enhance their employment relationship did not show actionable harassment, even if he also said that "what you need in your life is a good man to get yourself in."

   However, in Fall v. Indiana University Board of Trustees,(11) a federal district court in Indiana held that a single incident in a supervisor's office created an actionable hostile environment, where the supervisor grabbed and kissed the plaintiff with the door closed and forced his hand inside her blouse.

   Rorie v. United Parcel Service(12) was one of the earliest interpretations of Faragher and Ellerth by a federal court of appeals. The plaintiff testified that her supervisor was constantly "coming on" to her. The Eighth Circuit stated, "We cannot say that a supervisor who pats a female employee on the back, brushes up against her, and tells her she smells good does not constitute sexual harassment as a matter of law."

   In the wake of the Supreme Court's admonition that "the conduct must be extreme," some lower courts have taken a tougher stance on what is actionable sexual harassment. Other courts have not. The line between actionable hostile work environment harassment and non-actionable conduct remains as amorphous as ever.

2. "Objectively and Subjectively Offensive" Conduct

   A showing of "actionable" hostile work environment harassment also involves, as it did before Faragher and Ellerth, proof that the conduct was "objectively and subjectively offensive." In Kendrick, the district court examined the claim for objective offensiveness, but it assumed that the plaintiff's testimony, which was that the supervisor's behavior made her feel intimidated, violated and threatened was enough to create a triable fact issue on whether the supervisor's harassment was subjectively offensive to the plaintiff.

   This is consistent with pre-Faragher/Ellerth decisions, such as Dey v. Colt Construction & Development Co.(13) There, the Seventh Circuit held that the plaintiff's testimony that a vice president's harassment made it more difficult for her to work was sufficient to create a triable issue about whether the harassment was " subjectively offensive" to her, even though the plaintiff admitted that the atmosphere at work was "professional," that she repeatedly went to the vice president for legal advice and that his harassment did not impair her work performance.

   However, in Francis v. Board of School Commissioners of Baltimore City,(14) the Maryland federal district court held that the plaintiff failed to show that she was unable to perform her job or that her psychological well-being was significantly altered, despite her contentions that she was upset by the behavior and cried once at work, because she missed no days of works, did not see a psychiatrist or medical doctor, and did not receive any complaints about her work performance as a result of the harasser's alleged conduct.

   The new cases have not changed the previous tendency among the courts to focus on the objective part of the "actionable harassment" analysis, while spending little time on the subjective component.

3. "Unwelcome" Conduct

   A showing of "actionable harassment" also will continue to require proof that the conduct was unwelcome. This question becomes extremely difficult when the alleged victim and harasser have had a sexual or romantic relationship.

   In Johnson,(15) the plaintiff testified that she had sex with her supervisor because she believed that it was necessary to retain her job, and the court held that this raised an inference that the sexual encounter was unwelcome. In Excel Corp...