Employer Vicarious Liability for Voluntary Relationships Between Supervisors and Employees

• Publication year: 2006

SEATTLE UNIVERSITY LAW REVIEWVolume 29, No. 3SPRING 2006

Employer Vicarious Liability for Voluntary Relationships Between Supervisors and Employees

Carrie E. Fischesser(fn*)

I. Introduction

Two individuals working for the same employer voluntarily engage in a sexual relationship. One of the employees is the direct supervisor of the other. On a given occasion, the two individuals are working together when the supervisor suggests that the two of them go to dinner and a movie. At the end of the evening, when the two are about to part company, the supervisor tries to kiss the other employee good night. However, the employee tells the supervisor that this type of behavior is inappropriate and the supervisor apologizes and promises never to do it again.

Nonetheless, the two continue to spend time together, both on and off of company time. The employee visits the supervisor's apartment and even accepts a key to the apartment. Notwithstanding the employee's earlier refusal to submit to the supervisor's advances, the two eventually engage in intimate relations. The relationship continues for a period of time and at no point does the employee report any of the supervisor's conduct to the employer. However, after the situation in the work environment takes a turn for the worse, the employee makes a sexual harassment claim under Title VII of the Civil Rights Act of 1964.(fn1) The employee argues that the advances were unwelcome. The only reason the employee provides for submitting to the supervisor's advances was that it was an effort to remain in good standing with the employer. In other words, the employee allegedly feared that termination would result unless the employee submitted to the supervisor's advances.

This illustration provides just one example of the myriad ways that a voluntary sexual relationship can evolve between an employee and a supervisor. Only two circuit courts-the Second and the Ninth-have addressed whether an employer can be held vicariously liable in a situation such as that presented by this hypothetical.(fn2) More specifically, the Second and Ninth Circuits are the only circuits to address whether an employee's voluntary submission to a supervisor's sexual advances constitutes a "tangible employment action," thereby precluding use of the FaragherlEllerth affirmative defense against the employee's Title VII claim.(fn3)

This Article argues that the employer should not be held vicariously liable for an employee's voluntary submission to sexual advances simply because the alleged harasser is a supervisor. Instead, liability under these circumstances should be determined on a case-by-case basis using a negligence standard. Moreover, this Article argues that where voluntary submission is involved, the courts should impose individual liability instead of vicarious liability. This proposal is predicated on the assumption that responsibility for voluntary relationships should be vested primarily in the supervisors and subordinates, not (in most cases) in the employers. This does not mean, however, that an employee coerced into a sexual relationship with a supervisor should have no legal recourse.

It is somewhat radical to suggest that an employer should not be held vicariously liable for an employee's voluntary submission to sexual advances where the alleged harasser is a supervisor, and this approach is a marked departure from existing assumptions regarding sexual harassment. Most decisions and writings on the topic have imposed-under a traditional agency theory-vicarious liability upon the employer for the sexually harassing conduct of its supervisors.(fn4) Specifically, courts addressing this issue have held that "[t]here is no question that a 'tangible employment action' occurs when a supervisor abuses his authority to act on his employer's behalf by threatening to fire a subordinate if she refuses to participate in sexual acts with him, and then actually fires her when she continues to resist his demands."(fn5) This Article goes against the grain of both the cases analyzed and the scholarly articles written to date, though the author nevertheless attempts balance by proposing that a supervisor be jointly and/or severally liable with his employer for the discriminatory or harassing conduct of the supervisor if the supervisor is found to have engaged in sexual harassment. This proposal is fully consistent with the Supreme Court's decisions defining the scope of tangible employment actions.(fn6)

Part II describes the historical background of sexual harassment claims against the backdrop of the Supreme Court's decisions in Faragher v. City of Boca Raton(fn7) and Burlington Industries, Inc. v. Ellerth (fn8) Part III presents the Second and Ninth Circuits' analyses determining that voluntary submission to a supervisor's sexual advances constitutes a tangible employment action, thereby precluding use of the Faragher IEllerth affirmative defense. Part IV analyzes the decisions of the Second and Ninth Circuits and argues that voluntary submission does not constitute a "tangible employment action." However, even if the courts determine that voluntary submission does constitute a "tangible employment action," this Article argues that the appropriate standard in determining employer liability is a negligence standard. As such, the employer should be entitled to assert the Faragher I Ellerth affirmative defense in cases involving voluntary submission to a supervisor's sexual advances. Ohio courts apply a negligence standard, and this Part argues that the Supreme Court should follow suit. Part V concludes the article, noting that the imposition of a liability standard is consistent with Supreme Court precedent.

II. Background

A. History of Sexual Harassment Law

Title VII of the Civil Rights Act of 1964(fn9) is a remedial statute designed to protect employees from being subjected to discriminatory work environments and discriminatory employment practices.(fn10) It prohibits employers from discriminating against individuals with respect to compensation, terms, conditions, or privileges of employment on the basis of race, color, religion, sex, or national origin.(fn11) Courts have been willing to recognize a Title VII claim where harassment based on sex has created a hostile or abusive work environment, and when an employer conditions employment benefits on the provision of sexual favors.(fn12)

In Meritor Savings Bank, F.S.B. v. Vinson,the Supreme Court distinguished two types of sexual harassment claims that may expose an employer to liability under Title VII: (1) harassment that creates an offensive or hostile work environment, and (2) harassment involving the exchange of employment benefits for sexual favors {quidpro quo).(fn13) For an employee to succeed on a hostile environment claim, the court made clear that an employee had to establish that the harassment was severe or pervasive.(fn14) The Supreme Court eventually rejected the distinction between quid pro quo claims and hostile environment claims in 1998 when, in two sexual harassment companion cases, it revisited the question of employer liability for the harassing conduct of supervisory employees.(fn15)

B. The Supreme Court's Decisions in Faragher and Ellerth

In Faragher and Ellerth, the Supreme Court held that to properly analyze whether an employer should be liable for a supervisor's harassment, the cases should be divided into two categories: (1) cases involving a "tangible employment action," and (2) cases involving no "tangible employment action."(fn16) Under Faragher I Ellerth, where the supervisor's harassment is accompanied by a tangible employment action, the employer is held vicariously liable for the acts of the supervisor.(fn17) This is because the courts have reasoned that the employer has a greater opportunity and duty to guard against supervisor misconduct than that of the general worker.(fn18) On the other hand, where the supervisor's harassment is not accompanied by a tangible employment action, the employer is entitled to the FaragherlEllerth affirmative defense.(fn19) The FaragherlEllerth affirmative defense is comprised of two elements: (1) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.(fn20)

For purposes of Title VII liability, the definition of the term "employer" includes "agents" of the employer.(fn21) It was Congress's intent that courts look to agency principles in determining employer liability in sexual harassment claims.(fn22) In Ellerth, the Supreme Court stated that when an employee brings a claim seeking to impose vicarious liability upon an employer for the acts of an individual acting in a supervisory capacity, the "aided in agency relation" principle embodied in § 219(2)(d) of the Restatement (Second) of Agency provides the appropriate starting point for determining the employer's liability.(fn23) Section 219(2)(d) assigns vicarious liability to employers for intentional acts committed by supervisors if the employee was aided in the agency relation in accomplishing the tort.(fn24)

Accordingly, pursuant to Ellerth, when an employee brings a claim seeking to impose vicarious liability upon an employer for the acts of a supervisor, the...