Strike One - You're Out! Cautious Employers Lose Under New Sexual Harassment Law

JurisdictionUnited States,Federal
CitationVol. 78
Publication year2021

78 Nebraska L. Rev. 444. Strike One - You're Out! Cautious Employers Lose Under New Sexual Harassment Law



Strike One - You're Out! Cautious Employers Lose Under New Sexual Harassment Law: Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998)


I. Introduction .......................................... 444
II. Background ........................................... 446
A. Evolution of Sexual Harassment Law .............. 446
B. Rejected Standard - "Direct" and "Indirect"
Liability .......................................... 449
C. Facts of Faragher ................................. 452
III. Analysis .............................................. 454
A. Adopted Standard - Vicarious Liability for
Supervisory Sexual Harassment ................... 454
B. Vicarious Liability - More Punitive Than
Preventive ........................................ 456
C. Liability Not Automatic - Employer Defenses ..... 463
D. Practical Application for Employers ................ 467
IV. Conclusion ............................................ 468


Employee complaints of sexual harassment are on the rise. A re-cent

survey of 266 organizations showed that the average number of
complaints per organization rose from .69 in 1995 to 1.47 in 1997. 1 Of


those complaints, 51% involved an employee accusing a co-worker and 24% involved an employee accusing a supervisor. Additionally, damage awards and settlement costs can cost an organization thousands of dollars.2 Along with this backdrop, the United States Supreme Court recently issued a number of opinions regarding sexual harassment.

In two of those opinions, Faragher v. City of Boca Raton 3 and Burlington Industries, Inc. v. Ellerth,4 the United States Supreme Court created a new standard for hostile environment sexual harassment claims. Through the opinions, authored by Justice Souter and Justice Kennedy, respectively, the Court held that "[a]n employer is subject to vicarious liability 5 to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee."6 The Court also set out an af-firmative defense to employer liability and damages when no tangible employment action 7 is taken. Summarizing the defense, the Court stated:

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 em-ployer to avoid harm otherwise.8

This Note will examine the impact the Faragher and Burlington decisions will have on an employer's liability for hostile environment sexual harassment claims. First, the Note will review the evolution of sexual harassment law, and discuss the standard the Court overturned. The background material will also include a review of the


facts surrounding Faragher's sexual harassment lawsuit against the City of Boca Raton. Second, the Note will examine vicarious liability and the policy reasons for and against it. Next the scope of the affirmative defense, and its effect on innocent employers, will be covered. Finally, this Note will provide a practical application of the Faragher and Burlington decisions for employers.


A. Evolution of Sexual Harassment Law

Historically, courts have not been open-minded to the idea that sexual harassment violates the anti-discrimination provisions in Title VII of the Civil Rights Act of 1964. 9 "Sex" was not even included in the original Civil Rights Act. Its addition was an attempt by certain members of the House of Representatives to block passage of the Civil Rights Act.10 Consistent with this congressional antagonism, most courts ruled that the insertion of "sex" was not intended to cover harassment. 11 For example, in Diaz v. Pan American World Airways,12 the Fifth Circuit, in determining the purpose of the "sex" amendment to Title VII concluded, "it is reasonable to assume, from a reading of the statute itself, that one of Congress' main goals was to provide equal access to the job market for both men and women."13 The concept of sexual harassment did not come into the Diaz Court's analysis. In addition, many courts dismissed sexual harassment lawsuits because, unless an employer had a policy that authorized discrimination, it was unfair to hold it liable for acts for which it received no benefit.

The initial push to recognize that discrimination on the basis of sex included sexual harassment was made by legal scholars and the media. 14 Over time, courts became more receptive to this idea, especially when concrete employment benefits were conditioned upon sexual fa


vors. This ultimately became known as quid pro quo 15 sexual harassment. Even though Equal Employment Opportunity Commission ("EEOC") guidelines stated that employers are strictly liable for all supervisory sexual harassment, the courts divided sexual harassment into two types: quid pro quo sexual harassment and hostile environment sexual harassment.16 Hostile environment sexual harassment differs from quid pro quo sexual harassment in that no economic consequence for the employee is involved with the former. Courts continued to disfavor hostile environment claims even after quid pro quo was legitimized.17

Henson v. City of Dundee 18 was the first major decision by a court of appeals to recognize that sexual harassment claims do not require an adverse employment consequence. The plaintiff in Henson claimed that she was subjected to numerous questions about her sex life and that the Chief of Police for Dundee, Florida had subjected her to sexual vulgarities.19 The Eleventh Circuit Court of Appeals held sexual harassment that created a hostile working environment is "every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality."20 In its decision, the court, using the language of Title VII, reasoned that demeaning conduct, "inflicts disparate treatment upon a member of one sex with respect to terms, conditions, or privileges of employment."21 The court also held that to state a proper claim against an employer, a plaintiff must show the employer either knew or should have known of the harassment and failed to promptly correct it.22

Four years later, the United States Supreme Court in Meritor Savings Bank v. Vinson 23 agreed with the Eleventh Circuit's analysis in Henson. The Meritor Court concluded, "the language of Title VII is not limited to 'economic' or 'tangible' discrimination."24 Consequently, the Court ruled that hostile environment claims are a form of discrim


ination and are actionable under Title VII.25 However, the Court recognized that a balance had to be struck between simple intra-office horseplay and serious violations of law.26 As stated in Henson, in order for sexual harassment to be actionable, it must be "sufficiently severe or pervasive to 'alter the conditions of [the victim's] employment and create an abusive working environment.'"27

The Meritor Court also took up the issue of an employer's liability for sexual harassment claims brought by its employees. Meritor involved Mechelle Vinson, a female bank employee who brought a hostile environment claim against her supervisor and the bank. One afternoon, Vinson and her supervisor, Sidney Taylor, went to dinner. During dinner he suggested they go to a nearby hotel to engage in sexual relations.28 Vinson complied, fearing the loss of her job if she refused. Taylor, however, never actually indicated that she would lose her job if she refused. Vinson testified that Taylor repeatedly demanded sex, fondled her in front of other employees, and forcibly raped her on several occasions.29 Taylor, of course, denied all accusations. 30 The district court dismissed the case because Vinson did not suffer an "economic consequence," and because she voluntarily engaged in the sexual activity.31 The Court of Appeals for the District of Columbia took the opposite position, reversed the district court ruling, and held the bank strictly liable.32

The United States Supreme Court granted certiorari, reversed the court of appeals and rejected strict liability for employers.33 Although it refused to issue a definitive rule of law regarding employer liability for hostile environment claims, it instructed lower courts to look to the common law of agency for guidance.34 Specifically the Court cited §§ 219-237 of the Restatement (Second) of Agency with general ap


proval.35 This was consistent with EEOC guidelines in effect at the time, which also incorporated agency law with respect to employer liability. 36 Significantly, the Court also held that employers are not always automatically liable for the sexually harassing conduct of their supervisors.37 In its holding, the Court also rejected the bank's argu-ment that the mere existence of a grievance procedure, and the employee's failure to use it, shielded an employer from liability.38 The Court remanded the case to the district court to determine whether or not Vinson had a legitimate hostile environment claim based on its newly created rule of law.39

The United States Supreme Court expanded on the definition of a hostile environment claim in Harris v. Forklift Systems, Inc.40 In Harris, the Court held that whether a working environment is hostile or abusive is based on both an objective and subjective standard under the circumstances.41 Under this test, an employee's psychological well being is relevant but not dispositive.42 A reasonable employee would have to believe the conduct is severe or pervasive enough to create a sexually hostile environment.43 Moreover, the employee who brings the lawsuit must...

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