The Federalist Society's Labor and Employment Practice Group presented
a spirited panel discussion on developments in sexual harassment
law at its annual National Lawyers Convention in Washington, D.C.
on November 13, 1998. The discussion was moderated by practice group
vice chairman, Elizabeth ("Betsy") Dorminey of the Atlanta
law firm of Wimberly & Lawson, and the participants included:
the Honorable Edith H. Jones, United States Circuit Judge for the
Fifth Circuit Court of Appeals, Professor Deborah Brake, University
of Pittsburgh Law School, the Honorable Rosalie Silberman, Director,
Office of Compliance, United States Congress, and Chairman of the
Independent Women's Forum, and Ellen Vargyas, Legal Counsel, United
States Equal Employment Opportunity Commission.
ELIZABETH ("BETSY") DORMINEY:
Title VII of the Civil Rights Act of 1964 prohibits discrimination
in employment on the basis of race, color, religion or national
origin. Word has it that sex was included in this list by one of
my countrymenthat is, by a fellow Southernerin the hopes
that it would cause the legislation to be defeated. Although the
gentleman was disappointed when the measure passed, the inclusion
of sex, along with race and religion, as a prohibited reason for
differential treatment has caused all manner of controversy for
the 34 years that this law has been on the books.
To understand the cases we will be discussing today, it is necessary
to go back to 1986 and the Supreme Court's decision in Meritor Savings
Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986). The plaintiff
in that case, a female bank employee, alleged that her supervisor
forced her to engage in sex in order to keep or advance in her job.
Leaving aside some discussion about how she dressed and behaved
in the office, the Court, adopting a rather ingenious argument formulated
by Yale Law School Professor Catherine McKinnon, found that there
were two subcategories of sexual harassmentquid pro quo and
hostile work environmentfor which an employer could be liable.
Quid pro quo harassment occurs when getting, keeping, or advancing
in one's job is made contingent on compliance with requests for
sexual favors. For such behavior, the Court ruled that an employer
should be strictly liable. For a plaintiff to prevail on a hostile
work environment claim, on the other hand, an employer is liable
only if it was negligentthat is, if it knew or had reason
to know of severe and pervasive harassment in the workplace. If
an employer found out that there was a problem it could avoid liability
by taking prompt remedial actionfor example, firing the harasser
or reassigning the complaining employee to a more congenial environment.
Employers adapted to these decisions and things rocked along fairly
quietly until the Civil Rights Act of 1991 was passed. This law,
to paraphrase Lincoln, added the fuel of interest to the fire for
justice by making money damages available to plaintiffs in employment
discrimination cases. Employment law passed overnight from being
the unwanted stepchild of corporate law departments to a sought-after
source of substantial billings for the defense and a major brass
ring for plaintiffs. The volume of these cases in federal court
increased astronomically, and quite naturally they began to bubble
up to the Supreme Court.
Today we will discuss four sexual harassment decisions handed down
by the Court last termOncale v. Sundowner Offshore Services,
523 U.S. 75, 118 S. Ct. 998 (1998); Gebser v. Lago Vista Independent
School District, 524 U.S. 274, 118 S. Ct. 1989 (1998); Faragher
v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998), Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998).
Oncale was the first of this term's crop. A male plaintiff was
working on an offshore oil rig in the Gulf of Mexico where he alleged
he was subjected to egregious sex-related, but not necessarily homosexual,
humiliating treatment by some of his coworkers and supervisors.
His complaints produced no remedial action. At best, the company's
representative sympathized that they got picked on, too. The question
before the Court was whether he had a cause of action under Title
VII for harassment by his male coworkers.
The circuit precedent said that there was no such cause of action,
so Oncale lost at both the district court and the court of appeals
levels. The Supreme Court reversed the lower courts, with Justice
Scalia holding that workplace harassment can violate Title VII's
prohibition against discrimination based on sex even when the harasser
and the harassed employee are of the same sex. Justice Thomas concurred,
stressing that in every sexual harassment case the plaintiff must
plead and ultimately prove discrimination because of sexin
other words, to prevail on remand Oncale would have to establish
that he was harassed because he was male and would not have been
harassed had he been female.
The next decision was Gebser, brought by a high school student
and her parents. Ms. Gebser had a sexual relationship with one of
her teachers. She did not report the relationship to the school
but the pair was caught in what we lawyers love to call "in
flagrante delicto." The teacher was arrested and his employment
was terminated. The girl and her parents sought monetary damages
from the school system. The school won summary judgment in the district
court, the Fifth Circuit affirmed, and the Supreme Court affirmed
Justice O'Connor held that Title IX, which governs sexual harassment
in education, as opposed to Title VII, which governs employment,
has no implied right of action for sexual harassment of a student
by a teacher absent actual notice on the part of the school district.
Only in a case where the school authorities knew and were deliberately
indifferent to the plight of the student, the Court concludedwhere
school officials were negligent, in other wordswould the school
district be liable.
Then came the twins, Faragher and Ellerth. In back-to-back decisions
issued at the close of the '97-98 term, the Supreme Court revisited
the very foundations of Title VII jurisprudence and set out new
rules for employer liability for supervisory employees' sexual harassment
of their subordinates. The employee in Faragher, a lifeguard, quit
her employment after apparently enduring years of pinching, poking,
and crude comments by her supervisors, but never complained to management
until long after she had left her employment. The defendant City
of Boca Raton had a policy against sexual harassment, but apparently
the policy never made it out to the beach hut where the plaintiff
worked. Acknowledging that the City had not been negligent in dealing
with the harasser because it did not know about the problem, the
Court, per Justice Souter, nonetheless held the City vicariously
liable for the supervisor's harassment, reasoning on agency principles
that an employer should be liable for sexual harassment engaged
in by its supervisory employees to the same extent that it would
be liable if those employees committed other torts, such as reckless
In Ellerth Justice Kennedy, writing for the majority, held that
under Title VII an employee who refuses the unwelcome and threatening
sexual advances of a supervisor yet suffers no tangible damages
may recover against the employer without having to show that the
employer was negligent or otherwise at fault for the supervisor's
The employee in this case, a salesperson, said that her supervisor
made many lewd comments, suggesting for example that her career
would advance more rapidly if she wore shorter skirts. She, however,
suffered no tangible job detriment. In fact, she was promoted while
the harassment was allegedly occurring, and she never complained
about it. Plaintiff admitted that she knew that the company had
a policy against sexual harassment, but the Court, focusing once
again on agency rather than on negligence, 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, Faragher and Ellerth, frightened employers because
they appeared to impose liability where there was no negligence
or even knowledge on the part of the company and no damages on the
part of the employee, but the Court threw out some hope for employers
in the shape of a newly-invented affirmative defense. Both decisions
hold that when the complaining employee has not suffered any tangible
job action such as discharge, demotion, or undesirable reassignment,
the employer may escape liability if it can show (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.
These rulings have caused many employers to publicize their policies
against harassment to their employees, even to the point of requiring
employees to sign forms acknowledging that they understand the policy
and accept responsibility for complaining promptly about any misconduct.
Justices Scalia and Thomas dissented in Faragher and Ellerth, stating
that the decisions unwisely prescribed different tests for discrimination
based on sex and discrimination based on race under Title VII, and
that employers should only be liable if they are proven to be negligent
in permitting abusive conduct to occur.
Three other cases deserve mention before the panelists take over.
The first is Davis v. Monroe County Board of Education, 120 F.3d
1390 (11th Cir. 1997), cert. granted, 119 S. Ct. 29 (1998), in which
certiorari was granted this September. This case, from my own home
state of Georgia, involves sexual harassment by and against fifth
graders and the school authorities' liability therefor. The student
complained, but it is alleged that the school officials did next
to nothing. Like Gebser, this case involves a Title IX claim and
should resolve a split among the circuits on this issue.
The other two cases are offspring of Faragher and Ellerth. In Montero
v. Agco Corp., 19 F. Supp.2d 1143 (E.D. Ca. 1998), the plaintiff
contended that her supervisors began to harass her shortly after
she was hired, but she did nothing for approximately two years.
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 California
district court concluded that the employer had met its burden of
proving the affirmative defenseshowing 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.
Hicks v. Alabama, No. 97-482, 1998 U.S. Dist. LEXIS 13995 (S.D.
Ala. 1998), was brought by a group of female guards charged with
maintaining discipline in a prison where only men were incarcerated.
The male prisoners engaged in a type of coarse and offensive physical
conduct we can safely characterize as uniquely and exclusively male,
in large numbers and at frequent intervals. There are still a few
things that only men can do. The female guards sued the prison,
alleging that their supervisors did not do enough to prevent them
from being exposed to this conduct, presumably because they resented
the female prison guards. Concluding that the plaintiffs presented
no evidence that they were treated any less favorably than were
their male counterparts, the Alabama district court granted summary
judgment to the State, noting that under Faragher's agency analysis
the plaintiffs had not shown that the prisoners were agents of the
State for any purpose.
These two cases suggest that employers' fears that Ellerth and
Faragher would make summary judgment unattainable may be somewhat
exaggerated. Both suggest that women in the workplace today are
being expected to take a greater degree of responsibility for themselves
than might have been the case earlier.
To discuss these fascinating cases we have a superbly qualified
panel of experts. Judge Edith Jones sits on the Court of Appeals
for the Fifth Circuit from whence Oncale and Gebser came. Professor
Deborah Brake teaches at the University of Pittsburgh Law School
and formerly was associated with the National Women's Law Center,
where she collaborated on amicus briefs in Ellerth and Faragher.
Ellen Vargas is the legal counsel to the EEOC, and it's her job
to advise that agency on how these laws ought to be applied. Rosalie
Silberman is in charge of administering these laws to Congress,
which until fairly recently had exempted itself from the application
of all these laws.
JUDGE EDITH H. JONES: Let
me start off by noting that since I am a judge, there are limitations
on what I can do in criticizing or in telling you what these laws
mean, or how these cases will apply, because they are already being
interpreted in the lower courts and are going to be working their
way up to our court eventually. I can raise questions, though, and
I can articulate difficulties in some of the underlying premises
in these cases involving sexual harassment law, and I will try to
do that in a few minutes' time.
Betsy provided a very nice summary of the relevant cases. I am
going to focus, because of time limitations, on Burlington Industries,
Inc. v. Ellerth and Faragher v. City of Boca Raton and their consequences.
Before those two cases were decided by the Supreme Court I think
it is pretty safe to say that most of the circuits had reached definitive
albeit differing rules on how sex harassment should be treated in
regard to a supervisor's liability.
There were two different rules, depending on the kind of conduct
involved. There were what were called quid pro quo cases, where
a boss (typically a male, although it could be a female), would
make advances to a member of typically the opposite sex, and try
to require that person to go out on a date or do other things in
exchange for advancement or even maintaining her status in the company.
All of the circuits agreed that the company is liable for those
kinds of advances because it was conditioning the employment terms
on the performance of the sexual acts or activities.
On the other hand, if the boss was simply a boor and was making
suggestive comments or creating what is called a "hostile environment,"
then the circuit courts differed on what kind of liability standards
ought to apply. A lot of courts my own included had
great difficulty saying that a boss who is a boor is an agent of
the company while he is being boorish. That just didn't conform
with the standards of agency or the standards of representation
of the company; nor did it suggest that the action of the boss was
done for the company's benefit. It was done to annoy people, and
normally creating annoyance and disturbance in the workplace isn't
thought to be part of the company's mission or activities. So many
of the lower courts had great difficulty with the agency theory
of liability. But, a couple of the courts did apply the agency theory,
and there were different variations on this theory.
The cases that came up to the Supreme Court were agency cases.
In the Faragher case, the Eleventh Circuit had simply held that
these lifeguards, when they had been pinching and poking, were not
acting within the scope of their employment and certainly were not
aided by the agency relationship as people then understood it. The
Eleventh Circuit also found the city couldn't be liable because
it neither knew nor should have known what was going on.
The Ellerth case is a masterful work on the part of the Seventh
Circuit. There are about six opinions in the en banc case, of which
Judge Posner's got the most publicity. But even they mostly agreed
that the applicable standard for the activities of a supervisor
ought to be that of negligence rather than strict liability. They
also agreed that in the so-called quid pro quo cases there is a
standard of strict liability.
Well, what did the Supreme Court say? Well, it didn't say either,
as best I can tell. Furthermore, it didn't take heed of Judge Posner's
observations that the Restatement of Agency is an ancient screed
and has no application to this. Instead the Court drew on agency
as something of a crutch to say any supervisor who imposes on a
young woman is aided by the agency relationship, because the woman
is afraid to respond to her boss's untoward advance or comment because
he is, after all, her boss. And so the Court created its own agency
basis for liability, and went on to say that the company is liable
even though it never knew about what the boss was doing or trying
to do, it's vicariously liable. Oh but wait a minute, Meritor Savings
Bank v. Vinson said we don't want to impose strict liability, so
we'll solve that. We'll give the employer an affirmative defense,
and the affirmative defense consists of two things, as Betsy said:
(1) did the company have a policy which was there for all to know;
and (2) did this lady reasonably avail herself of that policy?
So is it strict liability or is it a vicarious or negligence standard
of some sort? It is very difficult to tell. Does it expand liability
or does it contract liability? Does it simplify the law? Well, we
know it changes the law, and I will tell you all the questions that
it raises in changing the law and undoubtedly it will take us another
ten years or so to get some more definite cases up to resolve these
I can't really blame it all on the Supreme Court, though. After
all, Congress allowed Meritor to grow and expand for over 10 years
and you know what heroes the Congressmen are; they weren't about
to step in and try to define what sexual harassment is or what limits
there might be to liability. They are happy to defer to the courts.
So the Supreme Court had to resolve conflicts among the Circuits.
It had to create something. It came up with a standard that as best
I can tell somewhat splits the baby. It does potentially impose
broader liability on employers. It imposes a number of costs on
them, on the workplace and, indeed, on women, as I will try to explain.
On the other hand, it does say that not every action is going to
constitute sexual harassment.
So what are the questions or the emphases that one ought to draw
from these cases? First of all, it seems to me, you have to look
very closely to define what is an actual hostile environment after
these cases. They reiterated Harris v. Forklift Systems, Inc., 510
U.S. 17, 114 S. Ct. 367 (1993). They reiterated Oncale v. Sundowner
Offshore Services, Inc. Justice Scalia said that sexual harassment
law is not designed to create a code of civility for the American
workplace. To paraphrase one of the Court's cases on prison discipline,
not every push or shove ought to constitute a sexually hostile environment,
even if a supervisor does it. So one has to focus very closely on
the question: What are conditions that are so severe and pervasive
that they change the conditions of the employee's work? In my view,
just a few offensive comments, perhaps even an offensive request
to go on a date, can't constitute a hostile environment in and of
Now the Court did distinguish actions which are so-called quid
pro quo actions. So the lower courts are going to have to decide
whether any given invitation or innuendo was a quid pro quo type
of gesture or a hostile environment, because if it is quid pro quo,
the new affirmative defense is not available. But most cases are
hostile environment cases anyway, and hostility ought to mean hostility
and harassment ought to mean real harassment.
At the same time, the cases focus a great deal on the employee's
responsibility to respond and nip harassment or offensive conduct
in the bud. That to me is very reasonable. We are not in an age
when you can say that women are shrinking violets, that they are
undereducated, or that they are insufficiently aware of their rights.
All of the cultural developments teach us otherwise. So women are
responsible to come forward and complain.
Second, if the employer has certain harassment policies in place,
undertakes training, exercises some kind of oversight, has its employees
sign agreements to mediate or acknowledge the existence of the harassment
policies, then all of those are things that the employer can do
to lay the groundwork that it is not an intolerant workplace, and,
in that way, to create a ground for the affirmative defense.
Here are the issues that were not decided. First of all, I don't
regard these cases as definitive for what I would call incipient
sexual harassment. Let us say that the boss does three offensive
things spread over six months and finally the employee complains
through the disciplinary proceedings and remedial action is taken.
Does that mean that the employee still has a cause of action? Well,
I think there are two possibilities. One is that there may not have
been a sexually hostile environment in the first place. The other
is that there may be some room in which to say that a prompt remedial
action defense exists.
Second, does the Court's discussion about vicarious liability have
any overtones for punitive damages? One of the panels of the Fifth
Circuit has held that it does, in a very recent case called Deffenbaugh-Williams
v. Wal-Mart Stores, Inc., 156 F.3d 581 (5th Cir. 1998), rehearing
en banc granted and opinion vacated, Williams v. Wal-Mart Stores,
Inc., 1999 WL 107104 (5th Cir. Feb. 26, 1999). They simply applied
the cases and said this standard also determines the standard for
punitive damages. I think the Supreme Court will be looking at a
similar issue in Kolstad v. American Dental Association, 139 F.3d
958 (D.C. Cir. 1998), cert. granted, 119 S. Ct. 401 (1998).
Who is a supervisor? The Court defines it as anybody with immediate
or higher authority over the plaintiff. Well, what is authority?
Is authority control? Is it right to hire and fire, or is it just
a member of the secretarial pool and a person in the law firm? I
What are tangible employment actions? Because if no tangible employment
action is taken, then you have a difference of emphasis on liability
under the Court's opinion. Is an unpleasant reassignment a tangible
employment action? A transfer, even if there is no change in compensation?
We don't know right now.
Is "aided by the agency" a question of law or fact following
this decision? I suspect it is a question of law, but I suppose
a clever employer could say that a supervisor was in fact not aided
by the agency because, let's say, he approached the employee off
the work premises or something like that.
Is the negligence standard still intact for coworker harassment?
Indeed, I suspect that coworker harassment is really the biggest
problem that remains in the workplace, and the Court seemed at pains
not to want to disturb the uniform view of the courts that an employer
is not liable for the boorish conduct of coworkers among themselves
unless it knew or should have known of that conduct and failed to
take remedial action. That's still a rather open-ended test, but
the Court didn't seem to think it imposed limits and didn't seem
to want to reach that issue.
There isn't much post-Ellerth and Faragher jurisprudence yet among
the Circuits. Some of the trends are not too surprising. The Second
Circuit, in Distasio v. Perkin Elmer Corp., 175 F.3d 55 (2d Cir.
1998), held that even though the employee did not make known to
her boss half of the alleged incidents of harassment, the employer
could be liable on negligence principles. The Second Circuit did
not apply Ellerth and Faragher; it just supplied the negligence
The Fourth Circuit, in Ocheltree v. Scollon Productions, Inc.,
161 F.3d 3 (4th Cir. 1998), recently held that an employee could
go forward with her claim where the harassment was conducted by
a coworker but one very low-level supervisor was aware of it. The
employee had tried to complain to the owners of the company, it's
obviously a very small company. But for some reason she never got
in to see them and they didn't know that anything had happened until
after she quit and then sued them.
In the Tenth Circuit, one of the concerns expressed by Justice
Thomas's dissent has been solved. In Wright-Simmons v. Oklahoma
City, 155 F.3d 1264 (10th Cir. 1998), the Tenth Circuit applied
Ellerth and Faragher to racial discrimination. Another case, in
the Eastern District of Pennsylvania, filed by a plaintiff called
Vendetta, has applied the Ellerth-Faragher test to an ADA claim.
[Vendetta v. Bell Atlantic, 1998 WL 575111 (E.D. Pa., Sept. 8, 1998).]
There is another great case involving a plaintiff named Panick,
who deserved that name, I think. [Willingham v. Panick, 161 F.2d
614 (10th Cir. 1947) (concerning a claim by a truck stop waitress
who was injured when she hitched a ride from a trucker despite having
repeatedly warned him to slow down).]
These rulings are not too surprising. As of yet they haven't raised
some of the questions that I have mentioned. But, you know, what
sexual harassment law doesn't take care of is cases like Schmitz
v. Ing Securities, 10 F.Supp.2d 982 (N.D. Ill. 1998), decided in
Chicago, where a lady receptionist at the workplace consistently
wore short skirts, sheer outfits, low cleavage, and behaved in an
abominably vixen-ish fashion, which her boss kept pointing out to
her; she quit and sued him, and it doesn't take long to dispose
of that case, except the judge is so full of disbelief that somebody
would actually have the temerity to sue under these circumstances.
It's just the antithesis of sex harassment, but, you know, sex harassment
opens itself up to abuse, to second-guessing, to claims that are
founded on "he said/she said" complaints where human relations
are basically torn apart, deconstructed and reconstructed by clever
lawyers in a courtroom. You have got to wonder about whether law
that is doing through the ordinary processes what apparently Judge
Judy does on TV makes a whole lot of sense. It certainly imposes
a great deal of problems in the workplace and on lawyers.
We can say a few things about these cases and their general impact.
It is going to be great days for lawyers and for diversity advisors
and counselors. Lawyers are going to be even more important in the
workplace than they are right now, scrutinizing hiring and firing
decisions, the training programs, the employee handbooks, the amount
of dissemination of the work.
It's going to result in more bureaucratization of the workplace
and top-down control of employment decisions, which are extremely
difficult for big organizations. Perversely, that kind of imposed
control seems to be going in just the opposite direction from modern
trends in management and information technology which suggest that
people actually function better and organizations function better
in a dispersed setting. So it ultimately imposes costs on all employees.
Perhaps the most quoted sentence out of this whole affair has been
where Judge Posner in the Seventh Circuit referred to the fact that
the only way employers can control the behavior of their supervisors
is to have video cameras in the workplace. Hidden video cameras,
by the way. Their cost in terms of privacy, in terms of exposure
of human relationships affects private and personal lives in a way
that we haven't had to put up with before.
I think that on balance these two decisions are not particularly
bad from a purely legal standpoint. They raise the same kinds of
problems that any court decisions do when they try to reconcile
conflicting precedent. But in the workplace down in the real world,
these cases reflect that judges are remote from how things work
in employee relationships and they reflect that sense that only
elites can fathom as to how their superiority overcomes the nasty,
gritty realities of everyday life.
PROFESSOR DEBORAH BRAKE: Well,
good morning everyone. I am happy to be here to share my views on
sexual harassment law, which unsurprisingly, differ from Ms. Dorminey's
and Judge Jones's.
From my perspective, sexual harassment law is not protective enough.
Probably the best example of this is the Farragher case itself.
In that case, we have a lifeguard who was subjected to five years
of what every court that looked at the case agreed was very severe,
pervasive, persistent sexual harassment that no woman should have
to put up with in the workplace. There was no suggestion that Ms.
Farragher brought this on herself, that she wore sheer clothing,
or that she was a "vixen". Every court that looked at
this case said that this is abominable. Yet, in the end, Ms. Farragher
was awarded one dollar of nominal damages by the district court.
She won her case, but the one dollar damage award sent a very strong
message that maybe because she was a lifeguard and the court had
been watching Baywatch or something, that the harassment couldn't
have harmed her very much despite the length and degree of the harassment.
So notwithstanding that there are a lot of these claims out there
in the press about how sexual harassment law will bankrupt employers,
and how unfair it is that there are claims like this out there,
many times plaintiffs, even though they can prove their case, don't
in any imaginable sense of the word "profit" from it,
much less receive compensation.
In my view, Farragher and Ellerth are somewhat strong ratings for
sexual harassment, but in several respects they aren't strong enough.
Let me explain what I mean. First of all, I believe that the court
was absolutely right in going down the road of vicarious liability
for sexual harassment. The test should not be whether the employer
had notice of the harassment to hold the employer liable for sexual
harassment by a supervisor. No other area of discrimination law
that requires a plaintiff to prove notice as a prerequisite to liability
for employment discrimination.
If you have a supervisor who is just a basic dolt, who is somewhat
racist and decides not to hire someone because of their race or
transfers them to a less desirable department or lessens their job
responsibilities, the employer is liable for that supervisor's abuse
of the agency relationship. There is no requirement that the plaintiff
show notice on the part of the company president or the board of
directors or anybody else. The fact that the discrimination was
caused by that supervisor is enough to show a violation of Title
The reason for that rule is that, as between the person who is
harmed by the discrimination by having their pay docked or their
responsibilities taken away, and between the employer who has a
discriminatory supervisor working for the employer, it is the employer
who can best protect against the harm. The employer has the control
over the supervisor, the employer can monitor the environment, and
the employer can get insurance. The plaintiff, on the other hand,
is in a worse position.
But for sexual harassment law, until Farragher and Ellerth, a number
of circuit courts have applied a "knew or should have known"
requirement and carved out a lesser level of protection for sexual
harassment in terms of vicarious liability. Farragher and Ellerth
go a long way toward putting sexual harassment on the same ground
as other types of discrimination, including racial harassment.
In a somewhat baffling dissent in Ellerth, Justice Thomas argues
that the Supreme Court in Ellerth created a higher level of protection
for sexual harassment than racial harassment. That is simply not
the case. He cites some coworker racial harassment cases to show
that the standard for racial harassment is one of "knew or
should have known," but he is looking at the wrong area. Rather
than coworker harassment, he should be looking at supervisor racial
harassment. In fact, before Ellerth and Farragher, the circuit courts
had been farther down the road toward vicarious liability for racial
harassment than they were for sexual harassment. And, before Ellerth
and Farragher many plaintiff's attorneys who were arguing for vicarious
liability for sexual harassment were citing racial harassment cases
where courts had held employers liable for racial harassment by
a supervisor without a showing of notice. After Farragher and Ellerth,
courts unhesitatingly apply the same standard to racial harassment
as sexual harassment. So there is nothing to Justice Thomas's argument
that Ellerth and Farragher create a higher standard for sexual harassment
than racial harassment.
Where the Court started to go wrong in carving out a lower standard
of review or standard of liability for sexual harassment is in treating
sexual harassment that causes a tangible detriment differently from
sexual harassment that does not result in "a tangible kind
of company act."
Under the theory of agency law, where the harm is established by
the nature of the agency relationship, it does not matter whether
there is a tangible detriment or not. When a supervisor is drawing
on authority from the employer to do the harassing, so that the
employee can't get away from it, or as Justice Souter put it, tell
him where to go, and the harm is furthered by the existence of that
agency relationship, under agency law the employer is responsible
whether it results in tangible harm or not. By treating the two
types of harassment differently, you could have a situation where
sexual harassment is so bad that there is a constructive discharge,
meaning the plaintiff leaves because she can't tolerate it anymore,
yet, in that situation, the employer would have an affirmative defense
to liability. But if the plaintiff hadn't left with a constructive
discharge and had been terminated, the employer would not have the
affirmative defense. Nothing in Title VII law justifies these different
Just because it is a company act of firing someone, as opposed
to a constructive discharge, does not mean that the employer has
any greater level of oversight or any greater ability to figure
out that there was discrimination there. On paper, the act of firing
will look as neutral or facially nondiscriminatory as the supervisor's
manner of conducting of the workplace will look. In both cases the
employer would have to dig a little bit deeper to see the discrimination.
The affirmative defense would have been more grounded in the law
had the Court limited it to damages rather than permitting it to
defeat liability. Had the Court limited it to damages, the Court
would have been on much stronger footing because the defense that
the Court crafts comes from the law of avoidable consequences, which
is a doctrine of how to mitigate damages. The theory of that defense
is that where the plaintiff could have prevented additional harm
to herself, she had the duty to step forward and complain in order
to prevent that harm.
It is not a theory of contributory negligence, although that is
the way the court treats it, because contributory negligence asks
whether the plaintiff in some sense precipitated the harm or brought
it on herself. But the failure to use a sexual harassment policy
did not, in any sense, "precipitate" the harassment.
Now the failure to use the policy might constitute a failure to
take action to reduce the harm of the harassment, but that should
go to damages and not to liability. Had the Court treated it as
a defense to damages, it would have been more consistent with the
way Title VII law looks at the Price Waterhouse [v. Hopkins, 490
U.S. 228, 109 U.S. S. Ct. 1775 (1989),] type of situation where
you have discrimination in the workplace, but the employee would
have been harmed in the same way even if it hadn't been for the
Under the Civil Rights Act of 1991, the employer is still liable
for the discrimination in such a case, but the fact that the harm
might have happened anyway goes to damages. It goes to the remedy,
not to the liability. In the same way, where a supervisor draws
on the agency relationship to discriminate or to sexually harass,
the plaintiff's failure to report the harassment should go to damages
and not liability.
The other thing that troubles me about the affirmative defense
is that a number of courts are now granting summary judgment based
on the mere existence of a sexual harassment policy, without looking
at the quality of the policy, whether it prohibits retaliation,
whether it has some protection for confidentiality, and whether
the channels for reporting are reasonable. All of those factors
are very relevant to the question of whether the employer has acted
I am also concerned by the Court's suggestion that even if a plaintiff
did report the harassment that there might have been something else
that she needed to do in addition to make her response reasonable.
Finally, it is not clear what the reasonable plaintiff has to do
in order not to be barred by the affirmative defense. In many workplace
cultures, there is one word for a woman who complains about sexual
harassment, and that word is "unemployed." And it would
be very relevant for a court to look at not just the existence of
a policy on paper but how that policy has worked out in practice
and if everybody who uses that policy finds herself in some way
penalized. That would be very relevant and important to look at
under a defense like this.
I would also like to talk for just a minute about the differences
between the way the Court is looking at sexual harassment in the
workplace compared to the way it is looking at sexual harassment
in the school context. We have the Gebser decision, where under
Title IX the Court rejects vicarious liability and says the standard
is not only one of notice, in the sense of "knew" or "should
have known," but it is actual notice; and it is actual notice
to a person who could have disciplined the harasser, which creates
a very different incentive for schools than employers. It creates
the incentive for schools not to find out about the harassment.
A smart school district after Gebser will not distribute a sexual
harassment policy and procedure, because if it did, the student
would have a better chance of giving notice to someone who could
do something about the harassment.
Also, a smart school district after Gebser will put the authority
to discipline for sexual harassment in someone who is very hard
to get to. Maybe one superintendent will be the only person who
has the authority to discipline for sexual harassment. Under Gebser,
unless the plaintiff has the knowledge and ability to get to that
one superintendent, there will be no liability for teacherstudent
harassment. Now that is a very perverse incentive when you realize
that students are much less able than employees to figure out who
to report to and how to work the system. In fact, in the Gebser
case itself, that school district did not have a policy or had not
promulgated a policy telling students how to report sexual harassment
and what sexual harassment is. The plaintiff in Gebser, who was
in high school, testified that when her teacher started this relationship
with her, she believed it was wrong but she didn't know what she
should be doing about it. She didn't know who she could go to, who
she could trust, whether she herself might be punished. Of course
you can never answer for certain a counterfactual situation of what
someone would have done had things been different, but it is certainly
true that the school's failure to have any kind of policy discouraged
her from reporting it. So Gebser creates the incentive for schools
not to know and not to put out policies that will help students
know what to do. If anything, given the difference in the school
and work contexts, it is even more important for students that those
Gebser also creates the strange result that in order to have liability,
a school would have to have deliberate indifference, which is a
very different standard than that of coworker harassment under Title
VII, where an employer has the obligation to take responsive action
reasonably tailored to stop the harassment. Thus, an employer could
be required to do more to stop coworker harassment than a school
could be required to do to stop teacherstudent harassment. I think
the Court needs to come up with a theory of sexual harassment as
a wrong that applies consistently in all contexts.
The next issue for the Court is how Title IX responds to student-to-student
sexual harassment. People may think of a kiss on the cheek by a
fiveyearold, given all the media attention around that case a couple
of years ago, when we talk about studenttostudent sexual harassment,
but it is actually a great deal more serious than that. The plaintiff
in Davis after a five month period of escalating and very severe
sexual harassment by a fifth grader, wrote a suicide note, went
from an "A" student to a student who was barely getting
by, and had pretty severe educational as well as psychological difficulties.
I would think as parents or potential parents, that would be something
that we would all be concerned about. The school district was not
concerned. It did not impose even the smallest measure of discipline
on this boy when it learned about the problem. The school could
have stopped that kind of horrible consequence.
ROSALIE SILBERMAN: The
Clinton scandals have laid bare the difficulties of regulating and
thus creating a public dimension to that most private and essential
of human behavior, sexual conduct. To be sure, the issue of what
sexual harassment is and what should be done about it has, from
the beginning, been a combustible mixture of politics, law, and
sex. Conceived by radical feminists in academia, the doctrine was
legally born in a 1980 EEOC regulation which was received by the
Supreme Court five years later in Meritor Savings Bank v. Vinson.
At the EEOC, then Chairman Clarence Thomas and I had seen the nasty
reality of sexual harassment in horrific cases brought to the commission.
With women entering the workplace in greater and greater numbers,
it was a matter of good public policy that the government defend
the guidelines which provided necessary protection for working women.
To that end, the Reagan Justice Department was urged to craft a
brief which established crucial distinctions between sexual conduct
and sexual harassment, with the dividing line being that only unwelcome
sexual conduct constitutes harassment. We argued that employers
should not be liable for all sexual conduct in the workplace, especially
when they have a well publicized and effective policy against sexual
harassment and an avenue for complaint that bypassed the alleged
harasser. Conversely, the employee was required to notify the employer
that the conduct was occurring, unwelcome, and therefore, harassment.
With respect to liability, the government's brief argued for agency
principles: the employer should be liable for the conduct only when
he or she knew or should have known that the conduct was occurring
and was unwelcome. We believed then, and I continue to believe now,
that unless liability was limited to unwelcome sexual conduct of
a severe and pervasive nature, we would trivialize the protection.
To our surprise, feminist groups attacked our brief on the ground
that the employer should be strictly liable, that is, whenever sexual
harassment occurred. We were even more astonished when they did
not share our elation at the Supreme Court's unanimous endorsement
in Meritor which largely adopted the EEOC's interpretation and theory.
In retrospect, it was naive to think the Meritor decision would
have been seen by radical feminists as having established important,
sensible protections for working women. As Jeffrey Toobin put it
in a recent New Yorker article, "The creators of the doctrine
had a clear political agenda [to advance the notion] that sex between
a man and a woman in the workplace almost inevitably entailed a
form of coercion." The creators of the doctrine wanted the
broadest definition of sexual harassment and employer liability,
and to use the law, that tool of patrimony, to deconstruct what
they viewed as the traditional and subjugated role of women in the
workplace, indeed in the whole society.
Thus, they saw Meritor as a decidedly mixed blessing. It did establish
the legal theory, but adopted sensible limitations also. Some six
years later, the nation observed how a charge of sexual harassment
could be wielded as a political weapon, ironically against the person
most responsible for making it a legal reality, the now Justice
Since Meritor, subsequent Supreme Court and lower court sexual
harassment jurisprudence generally reflects the rational, responsible
policy course set out in the EEOC's brief in Meritor. That course,
though not destined to make the radical transformation hoped for
by Catherine MacKinnon and company, has effected important if less
revolutionary change in the workplace culture for millions of American
Has the change been all to the good? Hardly. Horror stories abound,
particularly in academia. But horror stories aside, the jury is
still out with respect to whether or not employers are being forced
to play the role of the sex police. Certainly, since the passage
of the 1991 Civil Rights Act which applied punitive and compensatory
damages to victims of sexual harassment, many frivolous lawsuits
have been brought and settled because employers are understandably
afraid of bad publicity and large verdicts. Heavy transactional
costs aside, the courts, however, have generally been hesitant to
accept a broad interpretation of the law in this area. To illustrate,
this reluctance was borne out by the short life span of the mischievous,
patronizing "reasonable woman doctrine."
More alarming from a public policy perspective, is the application
of this doctrine to Title IX. Sexual harassment as a form of discrimination
in the workplace should be covered under Title VII whether the employer
is in academia, a factory, or a law firm. Sexual harassment in the
form of uncivil or criminal conduct in schools should not. Much
mischief and worse are being perpetrated in the name of educational
equity to the detriment of important protection from sexual harassment
in the workplace.
On a final note, three years ago, Congress passed the Congressional
Accountability Act of 1995, 2 U.S.C. Section 1301, applying, for
the first time, eleven employment and labor laws to itself, including
laws against sexual harassment. But Congress also provided itself
mandatory, confidential alternative dispute resolution (ADR) which
has been extraordinarily successful. Sexual harassment claims are
particularly amenable to ADR, and the EEOC should earmark some of
its newly increased appropriation to replicate that model for the
rest of the country.
ELLEN VARGYAS: It's always
very interesting [Rosalie] to hear your history of the EEOC in the
years that you were there. I should say, however, that those of
us in what you would have called "the heart of the feminist
community" in 1986 were very pleased when Meritor came out.
SILBERMAN: That's not what
I heard, Ellen.
VARGYAS: I won't make sweeping
characterizations about the conservative community, and maybe we
can give the feminist community a little bit of a break in these
VARGYAS: What I would like
to do today is talk very practically about what EEOC is doing. The
Commission long has played an important role in the development
of law in the area of sexual harassment. It started the whole ball
rolling in many ways back in 1980 with its guidelines, which were
so important in subsequent development of the law. In its recent
decisions the Court relied explicitly on those guidelines and on
subsequent guidance that the EEOC has issued on harassment, and
we expect that we will move forward in this area and provide further
interpretations of the law in response to those decisions and perhaps
Now again, it would be very bad form for me to get ahead of the
Commission, so I am not going to try to do that. But what I would
like to do is talk for a few moments about some of the questions
that we are asking ourselves. These are not rhetorical questions,
and in discussion later or amongst the panel, I would be very happy
to get your input on how we look at some of these questions. Some
of them are the same questions raised by Judge Jones; some are different
We begin with the whole question of how the EEOC should provide
guidance, what kind of format. We can do a notice and comment format
or we can do a guidelines format. Guidelines could come with notice
and comment. We don't have actual substantive rulemaking authority
under Title VII, so that is not an option. What is most helpful?
Indeed, is it useful to put these things out in the public realm
or do we just create a political football?
I am very mindful of when I first arrived in my office in 1994
and could not get into my conference room because of the hundred-and-some-odd
thousand comments that had been filed in connection with our proposals
on religious harassment, most of which had not much to do with the
proposal. My personal favorites were some of the commentors who
got all mixed up. They sent checks to us instead of to the organizations
that had urged them to file the comments with us. We did send the
checks back, although it probably would have helped with some of
our financial problems in those years.
So, again, is it helpful to turn this into a political football?
Would we turn it into a political football? Is there some other
mechanism to do it?
These are the kinds of things that we are talking about.
A second question for EEOC is what issues to cover. Now clearly
Faragher and Ellerth deal with liability. The Title IX issues are
not our issues so we are not going to opine on those obviously.
Oncale answered in my judgment the easy question: is there liability
where the harasser and the victim are of the same sex? I think,
as we saw from a unanimous Supreme Court decision, the answer had
to be yes. To say no would have been as odd as saying that a woman
couldn't discriminate in hiring or terms and conditions of employment
against another woman, or so forth. That would be a fairly preposterous
result, and I think the Court reached the right answer and the only
The question that it didn't answer, though, was how do you define
harassment in this context? When is actionable harassment? I think
that the view is quite correct that harassment is discrimination.
It's not simply bad behavior. But what is the line? How do you draw
that? The Court didn't give a lot of guidance. Is that something
that we should be looking at?
As we go more into the Faragher and Ellerth issues, an interesting
question is whether there is anything left of quid pro quo analysis.
The Court recast the issue as tangible versus intangible results.
They talk a little bit about quid pro quo, but is there any reason
to further that analysis or should we just let quid pro quo go?
I do think that the issue Justice Thomas raised in his Ellerth
dissent of different standards for race and sex harassment was a
red herring. I don't think there's any basis for that. I think the
cases that are starting to come out are adopting these standards
across the board. I think that is the right answer and probably
not even sufficiently important for us to get involved in.
Some very interesting questions remain, though, about the relationship
between the Faragher-Ellerth standard and other standards for liability,
even in supervisory contexts. Is there anything left, for example,
of negligence in the supervisory context? You can get some interesting
questions, for example, in the case where the employer had a perfectly
decent complaint system; the employee didn't use it and didn't have
a particularly good reason not to use it, but the employer knew
about the harassment. Is negligence there as a backup standard
employers are liable if they knew or should have known and failed
to take corrective actionor have we lost the negligence standard
in supervisory harassment?
How do we analyze the alter ego theory, what is left of that? Is
there anything left of scope of employment? These are interesting
questions that we are looking at.
I don't think that the decisions did anything but shore up the
negligence standard for co-worker harassment, but I was interested
to hear a couple of comments that maybe they didn't. I don't quite
frankly understand those. From my reading, it's very clear that
the negligence standard does remain for co-worker harassment, but
I would be very interested to hear comments on those kinds of issues.
Judge Jones raised the question of what is a tangible employment
action. It's a good question. The Court was fairly direct, I suppose,
in the opinions. It gave examples and then it gave a sort of functional
analysis if it is something that only a supervisor can do,
then it is likely a tangible action.
Would it be useful to go into any more detail on some of those
How do you analyze what someone calls the "successful"
quid pro quo case? The boss says sleep with me to get the promotion.
She sleeps with him and gets the promotion. Tangible? Not tangible?
Should there be an affirmative defense in those cases? I would suggest
it would be rather perverse to give the employer an affirmative
defense in that kind of a case, but the analysis is interesting.
Judge Jones asked the question who is a supervisor? In the brave
new world of team leaders and all kinds of other business organizations,
I think this is a question that is going to cause some trouble and
it is the kind of question that we are looking at.
What does a good employer policy look like? What kind of guidance
would be useful out in the business world as to what is a good policy?
It is an interesting question to me partly because I wear two hats
at the EEOCmy office does policy development for the Commission
and we also are in-house counsel, and the EEOC has a little bit
of an EEO defense docket. Before I came to the EEOC I spent about
20 years doing plaintiff-side work. For the first time in my career,
I am doing some defense work as well. I recommend to everybody in
this business to try and do both sides. I think you learn immeasurably
from seeing the issues from the other point of view. I think it
gives a little useful humility to all of us who tend to be terribly
certain of our points of view, and I think it really does help with
the analysis. In any event, we are putting together a new internal
policy for EEOC, so these are interesting questions to us as a policy
matter and also because they are very close to home.
Would it be useful for us to put out a model policy? There is not
a lot of interest in doing that, I'll say, for several reasons.
One reason, which Debbie Brake talked about, is that we are concerned
courts may look only to the policy and not to how it is implemented.
Our view of the law is that the affirmative defense is not just
to have a paper policy. That's necessary but not sufficient. You
have got to implement it, and we are afraid that if we were to bless
a particular policy that message might get a little bit confused.
But again I would be interested to hear views on that.
Would it be useful to put out a checklist? And what kinds of provisions
would a good employer policy have? One of the things we think about
and certainly the strongest thing we hear from the plaintiffs' side
is protection against retaliation huge, enormous fears about
retaliation. The conventional wisdom notwithstanding, the great
majority of people who have been victimized by harassment never
go forward, and the reason they never go forward is that they are
scared to death to do it. So I think an employer's policy has to
deal with those concerns about protection from retaliation.
Another element is multiple points of access; I think most of us
agree that a good policy will have multiple points of access. Probably
the easiest way to have a bad policy and to fail the affirmative
defense as a consequence is to have a policy where the sole point
of access is the harasser. And that is not unusual when you look
at the cases; people have not complained because the way they would
have to have complained is through the harasser. So multiple points
of access is important.
Then there's the role of confidentiality. Here is an interesting
question we are struggling with, and I would be interested to get
any input. What happens if an employee comes to the employer or
an agent of the employer in the chain of command and says I really
just want to talk to you about this, I don't want this issue to
go forward. And suppose there's a decent relationship between the
employee and this agent supervisorgive me some guidance: Is
the employer liable automatically? Is there some way that you can
balance the interest in confidentiality and the interest in not
going forward? With a good policy, how do you handle that?
Another set of issues which are very interestingand we have
met with a variety of groups on both the plaintiffs' and business
side to get input on our thinkingand one of the most interesting
discussions we have had is when does an employee have a good reason
not to complain? Clearly there is some room in the decisions for
recognition that there will be circumstances where an employee will
have good reason not to complain. It's probably narrow, but what
would an employee have to show to establish a fear of retaliation,
for example? Can it be just a generalized fear? Does the plaintiff
have to know somebody who got fired because she complained? How
do you analyze that? What kind of guidance do you give?
Does a timely employee complaint automatically defeat the affirmative
defense? Are there any more obligations on the employee or is the
mere fact of the complaint enough? What is an employee's obligation
to take preventative action? And I think Judge Jones raised the
questionI am not sure, but I think she may have meant it this
waydoes an employee's obligation kick in before the conduct
has become sufficiently severe or pervasive to establish an actual
legal claim of harassment? What is an employee's obligation at that
stage, early-on in a pattern of conduct which may not have attained
a sufficient critical mass yet from a legal point of view?
Does an employee have to have complained if there has been one
severe, unremedial act of harassmentrape, for example? Would
you deny a claim if that was the harassing action?
So there are all kinds of questions that we are looking at, and
that we are thinking about. Our goal in all of this, and our motivation,
is the basic proposition that the best way to deal with harassmentjust
as with other forms of employment discriminationis to do our
best to make sure it never happens in the first place. That is the
best way to deal with this set of problems.
In the end, the overarching question we are asking is this: What
can we do to give practical guidance to the employer/employee communities
and to help the courts (if we may be so bold) to get us all to that
point where something that from my point of view is a serious problem
in the workplace becomes a matter that women workers don't have
to think about, that is not a fact of life. You know, my mother
was a working woman and in her day these things were a fact of life
in the workplace. It is different now as I go through the workplace,
but it's not solved. I have a 14-year-old daughter and my sincere
goal is that as she enters the workforce, this will be something
that shethat all of usdon't even have to think about.