Betsy K. Dorminey*
Sex always causes a sensation and rarely is conducive to clear
thinking. In back-to-back decisions issued at the close of its 1997-1998
term, the Supreme Court revisited the foundations of Title VII jurisprudence
and set out new rules for employer liability for sexual harassment
by supervisory employees of their subordinates. Although initial
reports suggested that these cases might vastly increase employer
liability for such conduct, some courts (and defense counsel) have
taken them as an opportunity to reassert a "back-to-the-Title
(VII)" logic that in the long run may actually cause the pool
of potential plaintiffs in the workplace to diminish.
The two decisions in question, of course, are Ellerth v. Burlington
Indus., Inc., 118 S. Ct. 2257 (1998) (Kennedy, J., writing for the
majority; Ginsberg, J., filing separate opinion, concurring in judgment;
Thomas, joined by Scalia, JJ., dissenting), and Faragher v. City
of Boca Raton, 118 S. Ct. 2275 (1998) (Souter, J., writing for the
majority; Thomas, joined by Scalia, JJ., dissenting). These cases
sweep aside the earlier McKinnonite analysis of "quid pro quo"
and "hostile environment" and hold that an employer is
vicariously liable to an employee who suffers sexual harassment
at the hands of a supervisor. Negligence is out as a theory; agency
principles are in. However, the decisions describe an "affirmative
defense:" an employer may avoid liability if the employee suffers
no tangible job detriment and the employer can show that (1) it
had a policy against sexual harassment which provided an effective
means for making complaints either through the chain of command
or directly to human resources and took prompt corrective action;
and (2) the employee unreasonably failed to take advantage of the
A brief review of the facts of each case will place them in context.
The employee in Faragher, a lifeguard for the City of Boca Raton,
quit because of constant harassment by her supervisors, but never
complained to management until long after she had left employment.
She sued the City for sexual harassment. Acknowledging that the
City had not been negligent because it had not known about the problem,
the Court nonetheless held it vicariously liable for the supervisors
harassment, reasoning that an employer should be liable for sexual
harassment engaged in by its supervisory employees to the same extent
as it would be liable if those employees committed other torts,
such as reckless driving.
In Ellerth, the Court held that under Title VII an employee who
refuses the unwelcome and threatening sexual advances of a supervisor,
yet suffers no adverse, tangible job consequences, may recover against
the employer without having to show that the employer was negligent
or otherwise at fault for the supervisors actions. The employee
in this case had suffered no tangible job detriment, in fact had
been promoted while the harassment was allegedly occurring, and
never complained about her supervisors misconduct until after
she resigned. The Court, focusing once again on the employers
liability for acts by its subordinates rather than on the concept
of whether or not the employer had been negligent, found for the
employee but remanded the case to the District Court for a determination
of whether the employer could make out a defense against her claims.
These two cases conjure up the ghastly specter of liability despite
blissful ignorance on the part of the employer, but at the same
time a ray of hope shines forth. Its source lies in Justice Thomas
concurrence in another famous sex case decided this term, Oncale
v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998). In
that case, which held that Title VII prohibited same-sex sexual
harassment, Justice Thomas offered the following concurrence which,
on account of its admirable brevity, will be reproduced here in
I concur because the Court stresses that in every sexual harassment
case, the plaintiff must plead and ultimately prove Title VIIs
statutory requirement that there be discrimination "because
of . . . sex."
Oncale, 118 S. Ct. at 1003.
Justice Thomas, as usual, makes an excellent point that many may
have missed. It is plain from the language of the statute that Title
VII forbids only "discriminat[ion] because of . . . race, color,
religion. sex, or national origin." 42 U.S.C. 2000e-2(a)(1);
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 , 95 S. Ct. 2362,
2372 (1975) (Title VII seeks "to make persons whole for injuries
suffered on account of unlawful employment discrimination.").
For discrimination to be actionable the plaintiff bears the burden
of proving that there is a causal connection between the alleged
harassment and his "race, color, religion, sex, or national
origin." See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 106
S. Ct. 2399, 2405 (1986). The majority in Oncale stated that "Title
VII does not prohibit all verbal or physical harassment in the workplace;
it is directed only at discriminat[ion] . . . because of .
. . sex." (original emphasis). Underscoring this point,
the Oncale Court held that "[w]hatever evidentiary route the
plaintiff chooses to follow, he or she must always prove that the
conduct at issue was not merely tinged with offensive sexual connotations,
but actually constituted "discriminat[ion] . . . because of
. . . sex." Id.
Many plaintiffs will have no adequate answer to this fundamental,
threshold question. Most harassment cases devolve into a tearful
litany of wrongs done to the complaining party; all too often true,
they nonetheless cannot always show that any person not a member
of the plaintiffs protected category was treated any better.
On the contrary, the evidence often demonstrates rather that the
plaintiffs co-workers were treated equally badly and that
the boorish conduct, although deplorable, is not actionable under
Title VII. Where everyone is a victim at one time or another of
rough horseplay and there is no evidence of sexual motivation there
is no actionable discrimination. Oncale, 118 S. Ct. at 1002 ("The
critical issue, Title VIIs test indicates, is whether members
of one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed.")
(citation omitted). Thus many plaintiffs cannot meet what the Supreme
Court in Ellerth described as the threshold question of showing
actionable discrimination "because of . . . sex." Ellerth,
118 S. Ct. at 2264; see also Oncale, 118 S. Ct. at 1002 ("Title
VII does not prohibit all verbal or physical harassment in the workplace;
it is directed only at discrimination . . . because of . .
Faragher and Ellerth hold that an employer, though vicariously
liable for the acts of its supervisory employees, may invoke an
affirmative defense to discrimination except "when the supervisors
harassment culminates in a tangible employment action, such as discharge,
demotion, or undesirable reassignment." Ellerth, 118 S. Ct.
at 2270. What constitutes a "tangible job action" is certain
to be a subject for lively litigation. The regrettable inclusion
of "undesirable reassignment" with the more easily ascertained
"discharge [or] demotion" provides considerable latitude
to plaintiffs lawyers. Is an assignment to clean-up detail
enough to breathe life into a harassment charge? Well see.
Ellerth and Faragher leave many other questions hanging. For example,
the decisions imply that for an employer to be vicariously liable
for a supervisory employees harassment, the "tangible
employment action" which is the culmination of the harassment
must be attributable to the harasser. Ellerth, 118 S. Ct. at 2271
("Although Ellerth has not alleged she suffered a tangible
employment action at the hands of Slowik [her supervisor], which
would deprive Burlington of the availability of the affirmative
defense . . . ") (emphasis added). What if an employee is harassed
by a supervisor but then laid off by someone else as part of a reduction
in force? If a court holds that the layoff is a "tangible job
action" then the employer is prohibited from presenting the
affirmative defense, and liability that began as vicarious becomes
The decisions appear to limit the class of employees whose acts
may subject an employer to liability: "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." Ellerth, 118 S. Ct. at
2270 (emphasis added). This apparently completely absolves an employer
for liability for harassment of an employee by another employee
of equal or lesser rank, and also should settle in favor of the
employer the question of employer liability for harassment of employees
by customers or clients, which hitherto has been debated.
How to go about making out the affirmative defense itself is problematic.
"When no tangible employment action is taken, a defending employer
may raise an affirmative defense to liability . . . subject to proof
by a preponderance of the evidence . . . 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 otherwise." Ellerth, 118 S.
Ct. at 2270. Is this a defense to liability or mitigation of damages?
If were speaking the language of agency, whence this notion
of "reasonable care" usually associated with negligence?
What is the significance of the conjunction ("and") linking
the two prongs of this defense? Of more immediate concern to both
employers and employees is the role that prompt remedial action
plays in the new regime. Is an employer to be given no credit for
attempting to remedy a bad situation after the fact?
One of the most significant effects of these decisions may be to
change corporate culture, though perhaps not in exactly the manner
desired by many self-styled proponents of womens rights. Ellerth
and Faragher impose vicarious liability on employers, but (in the
absence of tangible job action) not strict liability. The decisions
recognize that an employee who believes he or she is being victimized
has some duty and obligation to complain to the employer, and if
the employer has taken reasonable steps to implement a procedure
whereby such complaints may be made, it will not be liable to an
employee who fails to use them. It is on this point that several
District Courts and Courts of Appeals have focused to relieve an
employer of liability for the alleged harassment of an employee
who claimed to be afraid to complain for fear of losing his job.
One such case recently was reported in the Wall Street Journal
(Tues., Sept. 22, 1998, A-1). This case, Montero v. Agco Corp.,
1998 U.S. Dist. LEXIS 13956 (E.D. Cal. 1998), was brought by a plaintiff
who worked for the employer from April 1993 until July 1995, when
she resigned. The plaintiff contended that her supervisors began
to harass her shortly after she was hired, but she did nothing until
March 1995. When at last she did complain, the company promptly
investigated and the harassers were duly terminated. The court found
that at all relevant times the employer had maintained and enforced
a policy against harassment and retaliation. Applying Faragher,
the court concluded that the employer had met its burden of showing
that it had exercised reasonable care to prevent and correct promptly
the sexually harassing behavior, and that the plaintiff unreasonably
failed to take advantage of the preventive and corrective measures
the employer provided. Summary judgment was awarded to the employer.
Those who advise employers can take heart from this and similar
decisions which to some extent use Faragher and Ellerth to turn
the tables on plaintiffs. The message from the employer is loud
and clear: if you have a problem, its your obligation to complain;
and if youre not going to complain, its not going to
become our problem. This, of course, is precisely the kind of workplace
change that Title VII was intended to produce, and while it may
result in some courtroom losses for plaintiffs, in the long run
it probably will produce a more civil climate in the workplace.
*Betsy K. Dorminey is an attorney with Wimberly & Lawson in
Athens, Georgia and is also the vice chairman for programs of the
Federalist Societys Labor and Employment Practice Group.