For employers, the early results of this national debate have been a decidedly mixed bag.  Many actual or would-be harassers might have re-examined their workplace behavior.  But men in general, who are overwhelmingly the perpetrators of sexual harassment, also might have over-adjusted their workplace behavior by minimizing contact with their female co-workers, and in the process exposed their employers to more run-of-the-mill sex discrimination charges.  Women, perhaps feeling empowered, are less hesitant to complain to their employers about sexually-inappropriate behavior in the workplace.  But that feeling of empowerment extends to suing their employers as well.  And not all complainants have pure motives.  Some no doubt invent or exaggerate their complaints for a host of reasons; others, while unquestionably sincere, effectively seek to impose their own, often idiosyncratic, standards of propriety on the workplace.  The only clear victors are modern-day Puritans (1) and plaintiffs’ attorneys.  The only clear losers, predictably, are employers. 

But why is that so?   

First, neither courts, pundits, nor the public at-large has settled on any generally accepted definition of sexual harassment that can be meaningfully applied to the widespread scenarios that confront employers.  To be certain, there is a legal definition of sexual harassment, but whether any particular conduct actually violates that standard often can be determined only in retrospect; that is, after it has been examined by a jury.   

Second, courts still disagree on the factual circumstances and legal rationale that will make employers liable for sexual harassment.   

(1)     Although writing about an age-related comment, Judge Morris Sheppard Arnold’s observation in dissent in a recent court decision could be made of any number of sexual harassment claims:

Federal law has virtually transformed our offices and factories into completely humorless places: There is evidently nothing that a person can say that cannot be remade into something dark and actionable by a sufficiently suspicious imagination.  The right to speak, formerly an object of jealous pro-tection by the federal courts, has been turned on its head and made into a right to be free from imaginary insult. Hardin v.Hussmann Corporation, 45 F.3d 262, 266-67 (8^th Cir. 1995) (Arnold, M.S., J., dissenting). 

Thus, employers often cannot determine whether a particular fact-pattern meets the legal definition of sexual harassment and, if it does, what action it is legally required to take.   

Third, the enactment of the Civil Rights Act of 1991 means that sexual harassment claims brought under Title VII of the Civil Rights Act of 1964 will be heard by juries, who may award compensatory, including emotional distress, and punitive damages.   

Fourth, liability for sexual harassment is not confined to the comparatively more certain reach of federal and state employment discrimination statutes.  Inventive plaintiffs’ attorneys routinely assert all-too-often amorphous common-law theories of recovery, either alone or in conjunction with more-limited statutory remedies.  Rare is the “sexual harassment” case today that does not include or consist of claims for breach of contract; wrongful discharge; invasion of privacy; defamation; assault and battery; and the ubiquitous intentional or negligent infliction of emotional distress.  Not only do these common-law theories afford essentially unlimited damages, but they have much longer statutes of limitations.   

Fifth, and often-overlooked, is the disturbing and increasingly common practice of (alleged) sexual harassers suing their employers on theories that mirror those brought by (alleged) victims. The unsettled state of the law is a boon to plaintiffs’ attorneys and the bane of employers.  The practical result is that employers must combine the craft of an clairvoyant (How will a judge and jury see this?), with the skill of a sleuth (Who did what to whom?). Employers found wanting on either score face potentially devastating liability to the accuser and accused alike. 

What Is Sexual Harassment?    

The Theories. 

Courts and the EEOC have recognized two types of sexual harassment:  Quid pro quo (“this for that”) harassment exists when an employer (in practice a supervisor or manager) makes consent to a demand for sexual favors a condition of employment, continued employment, or a benefit of employment.  Crudely put, the quid, sexual favors, is exchanged for the quo, a job, a promotion, a raise, or the like.  Hostile-environment harassment exists when an employer (in practice any employee) subjects an(other) employee to a working environment that includes severe or pervasive unwelcome sexual advances, innuendos, requests for sexual favors, or other offensive conduct of a sexual nature.  Such conduct need not be linked to a tangible job benefit or economic consequences. 

EEOC Guidelines on Sexual Harassment

The EEOC defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: 

• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (quid pro quo), or

• Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, (quid pro quo), or       

• Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment, (hostile environment).            

The Supreme Court.           

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)                                  

The Supreme Court in Vinson recognized that sexual harassment is sex discrimination that violates Title VII.  Moreover, Title VII does not require     that the victim suffer tangible, economic loss; “a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.”  Id. At 66.  “For [hostile-environment] sexual harassment to be actionable,” the Supreme Court   continued, “it must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working    environment.”  Id. At 67 (alteration in original).  The court clarified that while    sexual harassment must be “unwelcome,” it need not be involuntary.  In other words, a plaintiff who is the subject of sexual advances need not    prove that her submission to the advances was involuntary or nonconsensual; it is enough if the advances were unwelcome.  Id. At 68-69. The Court noted, however, that the plaintiff’s “sexually provocative speech or dress,” including in this case the plaintiff’s “publicly expressed sexual fantasies,” may be relevant to    determining whether the complained-of conduct was unwelcome.  Id. At 69.(2) 

Harris v. Forklift Systems, Inc., 114 s. Ct. 367 (1993). 

In Harris, the Supreme Court further clarified the meaning of hostile-environment sexual harassment.  The Court held that a plaintiff need not prove that her psychological well-being was affected by the harassment.  Id. At 370-71.  Instead, fact finders must look at all the circumstances surrounding the alleged sexual harassment, including the frequency of the conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with the employee’s work performance.   The conduct must be sufficiently severe or pervasive to create an objectively hostile or abusive environment, and the victim must subjectively perceive the environment to be abusive.  Id. (2) 

The new amendments to Federal Rule of Evidence 412 undermine an employer’s ability to establish that the complained-of conduct was welcome.  Rule 412, passed by Congress over the objections of the Supreme Court, makes inadmissible in civil proceedings “involving alleged sexual misconduct” evidence about the alleged victim’s “sexual behavior” or “sexual predisposition” unless the evidence is otherwise admissible under the Rules of Evidence and its probative value substantially outweighs the danger of harm to the victim and the unfair prejudice to any party.    

Justice Scalia, concurring in the Court’s opinion, expressed what many employers (and their attorneys) already knew:                                     

‘Abusive’ (or ‘hostile,’ which in this context I take to mean the same thing) does not seem to be a very clear standard—and I do not think clarity is at all increased by adding the adverb ‘objectively’ or by appealing  to a ‘reasonable persons’ notion of what the vague work means.  Today’s opinion does list a number of factors that contribute to abusiveness,...but since it neither says how much of each is necessary (an impossible task) nor identifies any single factor as determinative, it thereby adds little certitude.  As a practical matter, today’s holding lets virtually unguided juries decide whether sex-related conduct engaged in (or permitted by) an employer is egregious enough to warrant an award of damages.

 (3)  In reciting the “objective” prong of the inquiry, the Court wrote that the conduct must create “an environment that a reasonable person would find hostile or abusive.”  Harris,  114 S. Ct. at 370 (emphasis added).  Some commentators suggest that the Supreme Court’s use of the phrase “reasonable person” impliedly rejects the Ninth Circuit’s adoption of a “reasonable woman” standard, Ellison v. Brady, 924 F. 2d 872 (9^th Cir.  1991). The Fifth Circuit has expressly held that under Harris “[the] test is an objective one, not a standard of offense to a ‘reasonable woman.’” DeAngelis v. El Paso Municipal Police Officers Association,  51 F. 3d 591, 594 (5^th Cir.) (emphasis in original), cert. denied, 116 S. Ct. 473 (1995).  In Garcia v. Andrews,867 S. W. 2d 409, 412 (Tex. App.—Corpus Christi 1993, no writ), the court rejected the “reasonable woman” standard for determining whether an employer’s conduct was “extreme and outrageous” enough to satisfy the test for intentional infliction of emotional distress.           

EEOC’s Enforcement Guidance on Harris, EEOC Notice 915.002  (March 8, 1994).   

Not surprisingly, the Commission found Harris “fully consistent” with its own prior view of the law; it announced that “Harris requires no change in Commission policy or in the way the Commission investigates charges.”  An often troublesome issue in hostile-environment sexual harassment cases is whether the complaining employee “subjectively” perceived the working environment as abusive.  The Commission reaffirmed  its view that in most situations the employee’s simple  assertion is sufficient proof of the subjective perception, and that neither  the absence of contemporaneous complaint by the employee nor  even active participation in sexually-related conduct by the employee will over-come the employee’s assertion that she perceived the environment as abusive.           

DeAngelis v. El Paso  Municipal Police Officers Association, 51 F. 3d 591 (5^th Cir.), cert. denied, 116 S. Ct. 473 (1995).                          

The Fifth Circuit in this case summarized the Harris criteria for hostile-environment sexual harassment claim as follows:  “(1) Sexually discriminatory intimidation, ridicule and insults, which are (2) sufficiently severe or pervasive that they (3) alter the conditions of employment and (4) create an abusive  working environment.”  Id. At 594.  “[A] less onerous standard of liability,” the court wrote, “would attempt to insulate women from everyday insults as if they remained models of Victorian reticence.”  Id. At 593; see also Baskerville v. Culligan International Co., 50 F. 3d 428, 430-31 (7^th Cir. 1995) (commenting that “only a woman of Victorian delicacy—a woman mysteriously aloof from contemporary American popular culture in all its sex-saturated vulgarity”—could have been distressed by the supervisor’s adolescent humor); supra p. 2 & n.1.  

When Is An Employer Liable For Sexual Harassment?           

Essentially, employers are liable for the acts of their employees.  In cases in which supervisors commit quid pro quo sexual harassment, the employer may suffer “strict liability” with no affirmative defense available.  In those cases in which non-supervisory employees commit sexual harassment, the employer is responsibility for halting the unwanted behavior at the point in which knowledge is gained.               

The Fifth Circuit.

 (4)  Judge Posner, writing in Guess v. Bethlehem Steel Corp., 913 F. 2d  463, 464-65 (7^th Cir. 1990), correctly notes that the use of the term respondeat superior to describe an employer’s liability in sexual harassment cases is incorrect:  “The truth is that respondeat superior is, from the employer’s standpoint, a doctrine of strict liability.  It makes the employer liable, regardless of what he knew or should have known or did or should have done, for the torts that his employees commit in the course of, or (in the case of intentional torts) in the furtherance of, their employment.”  The proper standard, at least where the accused is a co-worker and not a supervisor, negligence:  “[T]he employer, provided it has used due care in hiring the offending employee in the first place, is liable for that employee’s torts against a coworker only if, knowing or having reason to know of the misconduct, the employer unreasonably fails to take appropriate corrective action.  The employer acts unreasonably either if it delays unduly or if the action it does take, however promptly, is not reasonably likely to prevent the misconduct from recurring.”  Id. At 465; see also Baskerville, 50 F.3^rd at 432.  

As applied by the Fifth Circuit, an employer is liable for the sexually harassing conduct of an employee—apparently either a co-employee or supervisor—if the plaintiff proves that the employer either knew or should have known of the conduct and failed to take prompt remedial action.  Jones v. Flagship Int’l., 793 F. 2d 714, 719-20 (5^th Cir. 1986), cert. denied, 479 U. S. 1065 (1987).  Although the Fifth Circuit has repeated the respondeat superior mantra both with respect to quid pro quo and hostile-environment cases, it has never examined how the doctrine will be applied in the former context.  Most courts and the EEOC take the position that an employer is strictly liable for quid pro quo sexual harassment, which, by definition, can be inflicted only by a supervisor.(5)  There is wide disagreement, however, about the standard of liability when a supervisor engages in hostile-environment sexual harassment.  The Fifth Circuit has applied the notice/remedial action test to both co-employee and supervisor hostile environment cases, as the following decisions illustrate: 

(5)  In a case decided under the Texas Commission on Human Rights Act, the state-law counterpart to Title VII, the court held that an employer is strictly liable for quid pro quo sexual harassment.  Ewald v. Wornick Family Foods Corp., 878 S. W. 2d 653, 659 (Tex. App.—Corpus Christi 1994, writ denied). 

Dornhecker v. Malibu Grand Prix Corp., 828 F. 2d 307 (5^th Cir. 1987).    

On a two-day business trip, the plaintiff was sexually harassed by a contract employee.  She complained by telephone to the company’s president, who assured her that she would not have to work with the employee following the trip.  Apparently unsatisfied with that response, the plaintiff quit.  Id. At 308-309.The Fifth Circuit reversed a judgment in favor of the plaintiff, finding that the company was not liable under Title VII because it had taken prompt remedial action to stop the sexual harassment.  The court held that the company’s response was prompt—virtually overnight—and decisive.  “Ordinarily,” the court observed, “an organization requires time to respond to embarrassing, emotional and often litigation-spawning claims of sexual harassment.  Careers and corporate image rest on the company’s handling of such charges...In this case one cannot reasonably demand the employer to ignore its experience with the alleged offender or to examine a charge of sexual harassment based on one side of the story, in a vacuum.”  Id. At 309-310. 

Waltman v. International Paper Co., 875 F. 2d 468 (5^th Cir. 1989).   

Over a dissent by the author of Dornhecker, the Fifth Circuit reversed the district court’s grant of summary judgment to the employer.  The plaintiff claimed that she was the target of  over the public address system.  Co-employees then began to make suggestive comments to her.  She complained to her supervisor, but he merely told the responsible employee to stop the broadcasts.  The employee was not punished.  Months later, another supervisor and his assistant urged the plaintiff to have sex with another employee; pinched her buttocks; and made sexually-suggestive comments.  The plaintiff received over 30 pornographic notes.  Sexually-explicit pictures and graffiti were drawn throughout the workplace, some of which were directed at the plaintiff.  Employees kept sexually-oriented calendars in the workplace and hung used tampons on the lockers.  The plaintiff’s co-workers repeatedly propositioned her.  After the plaintiff complained to a manager, the supervisor was directed to tell his shift that such behavior was unacceptable.  No investigation was made and no discipline imposed.  The plaintiff was transferred to another shift. The sexually-harassing conduct continued:  a co-worker called the plaintiff a whore; a contractor’s employee stuck his tongue in her ear; another employee told her that “he would cut off her breast and shove it down her throat”; that employee later dangled her over a  stairwell; another employee pinched her breasts; and yet another grabbed her thigh.  The plaintiff yet again complained to management.  She alleged that she was discouraged from pursuing the complaint.  The company did not investigate her complaints, although they did erase the graffiti and require that all supervisors read the plant’s sexual harassment policy to their employees.  The company took no disciplinary action against any employees.  The plaintiff ultimately resigned after more incidents of sexual harassment.           

The majority held that the plaintiff had proved a fact issue as to the existence of a sexually-hostile work environment; the company’s knowledge of the environment; and the company’s failure to take prompt remedial action.  An employer’s remedy, the court held, must be “reasonably calculated” to end the sexual harassment.  With respect to the graffiti, the court held that the company had the responsibility to determine who was responsible for it, to remove it, and to take steps to prevent its reappearance. 

Cortes v. Maxus Exploration Co., 977 F. 2d 195 (5^th Cir. 1992).   

The Fifth Circuit upheld a finding of sexual harassment in this case.  Shortly after being hired, the plaintiff’s supervisor began  propositioning the plaintiff. He sometimes threatened to demote or fire her if she refused his advances.  The supervisor made loud  remarks about the plaintiff’s body, told her vulgar jokes on a daily         basis, showed her pornographic photographs, asked her to come to his house for “training,” bragged about the size of his penis, and frequently brushed up against her legs and breasts.                       

The plaintiff complained to management and was promised an investigation.  Instead, the supervisor demoted her.  She complained again.  The human resources manager said he did not believe the plaintiff and warned her that she was exposing herself to liability for slander.  The plaintiff then complained to senior management, who again promised and investigation.  When she returned to her office, the supervisor docked her pay.  He then began requiring the plaintiff to ask his permission before leaving the office.  The plaintiff eventually transferred to another department.  The supervisor was not investigated or disciplined.                        

Later, the plaintiff was assigned temporarily to work for the accused harasser.  He renewed his sexual advances and offensive jokes.  The plaintiff then renewed her complaints with the new human resources manager.  He advised her “to imagine that [the accused harasser’s] advances and jokes were nothing more than pink elephants and that when he snapped his fingers, she should    forget them.”  When she continued to complain, the manager began snapping his fingers.                       

Three years later, the plaintiff again was assigned to work for the accused harasser.  The human resources manager told the plaintiff that her problem with the supervisor was not the company’s problem and that there was nothing he could do for her.  Not surprisingly, the Fifth Circuit found that the defendant’s failure to investigate the plaintiff’s complaints and refusal to take remedial action subjected it to liability under Title VII.

Landgraf v. USI Film Products, 968 F. 2d 427 (5^th Cir. 1993), aff’d on other grounds, 114 S. Ct. 1483 (1994).   

The plaintiff was sexually harassed by a co-worker.  (The opinion does not describe the objectionable conduct.)  The plaintiff reported the conduct to her supervisor, who took no action.  The plaintiff then complained to the personnel manager.  He investigated the complaint, corroborated the plaintiff’s story, and issued a written reprimand to the employee.  The company informed the plaintiff that it had taken action against the accused employee, but declined to reveal what that action was.  It also asked the plaintiff to notify the personnel manager if the employee attempted to retaliate against her.  The plaintiff abruptly quit shortly thereafter. The Court of Appeals found that the company’s remedial action was reasonably calculated to end the complained-of conduct. “Title VII” the court held, “does not require that an employer use the most serious sanction available to punish an offender, particularly where, as here, this was the first documented offense by an individual employee.”  Id. At 430.           

Nash v. Electrospace System, Inc., 9 F.3d 401 (5^th Cir. 1993) (per curiam).   

The plaintiff alleged that her supervisor had subjected her to “a barrage of questions about her personal and sex life.”  After she complained, the director of human resources immediately began an investigation by interviewing the supervisor, who claimed that the conversations were voluntary, and other employees.  The director instructed the supervisor not to contact the plaintiff during the investigation.  Within a week, the company transferred the plaintiff to another department.  The transfer had no effect on her salary or benefits.  The sexual harassment conduct stopped.                       

The Fifth Circuit reaffirmed that “[w]hen a company, once informed of allegations of sexual harassment, takes prompt remedial action to protect the claimant, the company may avoid Title VII liability.”  Id. At 402.  Here, the company immediately began an investigation.  The plaintiff’s complaints could not be corroborated because the supervisor denied the conduct and co-workers had not experienced similar treatment.  The investigation was completed within a week of the complaint.  The transfer was not a retaliatory move, but an act that insulated the plaintiff from further contact with the supervisor.  The court also took note of the company’s sexual harassment policy and wrote that “[t]he availability of a formal grievance procedure...Should be counted strongly in [the employer’s] favor...”  Id. At 404 n.2.  The court concluded that Title VII is not “a strict liability statute” and that the facts “demonstrate[d]a model of prompt, sensitive employer handling of these very traumatic cases.”  Id. At 404.           

Carmon v. Lubrizol Corp., 17 F. 3d 791 (5^th Cir. 1994) (per curiam).   

The plaintiff and a male co-employee had an argument in which vulgar words were exchanged.  The plaintiff complained to a supervisor about the incident and also alleged that the co-employee had asked her questions about her sexual activities.  On the same day, several supervisors and the personnel manager met with the plaintiff, thanked her for bringing the incident to their attention, told her that the company did not condone or      tolerate sexual harassment, and promised her that it would investigate.  The company interviewed the co-employee, who admitted using foul language but nothing more, and six witnesses. The witnesses did not support the plaintiff'’ version of events.  The co-employee was reprimanded in writing for his language and      transferred to another shift.  The investigation was concluded within 3 days of the complaint.                       

A year later, the plaintiff complained again of sexual harassment in a 10-page letter.  The company sent two employees from its corporate personnel department to assist the on-site personnel manager with the investigation.  The team interviewed the employees named in the letter and asked the plaintiff to provide any additional information she might have.  She declined.  The investigation revealed only that employees engaged in horseplay and other inappropriate behavior, but not sexual harassment.  The company sent a memo to all employees about the inappropriate behavior and held meetings to inform employees about proper           workplace behavior.                       

The Fifth Circuit upheld the district court’s judgment for the employer.  The appeals court agreed that the company took prompt and appropriate remedial action in response to the plaintiff’s complaints.  The court concluded:                                      

[The defendant] twice did what a company ought to do when faced with allegations that an employee has been subjected to sexual harassment, engendering a hostile work environment: It took the allegations seriously, it conducted prompt and thorough investigations, and it immediately implemented remedial and disciplinary measures based on the results of such investigations.  Holding a company such as [the defendant] liable after it has taken such action would produce truly perverse incentives benefitting no one, least of all actual or potential victims of sexual harassment.

 Id. At 795-96 (emphasis in original). 

Garcia v. Elf Atochem North America, 28 F. 3d 446 (5^th Cir. 1994)   

The male plaintiff alleged that a male supervisor had sexually harassed him on several occasions by reaching around him, grabbing his crotch area, and making sexual motions.  The employer investigated the complaint, reprimanded the supervisor, and informed him that any further incidents would result in discharge.  No further incidents occurred.  Years before the plaintiff’s complaint, the employer had received two other arguably similar complaints about the supervisor.  The conduct was considered to be horseplay and not sexually motivated.  The supervisor was counseled about his conduct on both occasions.  On appeal, the Fifth Circuit upheld the district court’s grant of summary judgment.  One of the grounds for the summary judgment (6) was the employer’s prompt remedial action.  The court noted that the reprimand was effective because the complained-of conduct ceased.           

The EEOC’s View

The EEOC takes a predictably more complicated approach to employer liability for sexual harassment.  A number of courts have adopted some or all of the Commission’s analysis.  For complaints against co-worker only, the Commission (and the courts that follow a standard much like the Fifth Circuit’s:  “[A]n employer is responsible for acts of sexual harassment in the workplace when an employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.”  29 C.F.R. / 1604.11(d).                       

The EEOC’s regulations provide, however, that an employer “is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence.”  Id., / 1604.11(c).                 

6.  The Fifth Circuit also ruled that the plaintiff in any event could not state a claim for sexual harassment because same-sex harassment does not violate Title VII.  28 F. 3d at 451-52. 

That language seems to apply to both quid pro quo and hostile-environment sexual harassment.  But subsequent policy guidance issued by the EEOC takes another approach.  As to quid pro quo sexual harassment, the Commission opines that “[a]n employer will always be held responsible...”  As to hostile-environment sexual harassment by supervisors or managers, the Commission takes the position that employer liability will turn on the application of agency principles.  In general, the Commission’s analysis allows employer liability in three different situations: (i) if the supervisor acted within the scope of his employment, (ii) if the employer negligently or recklessly failed to take remedial action after having actual (or constructive) knowledge, other than through the allegedly offending supervisor, of the harassing conduct, or (iii) if the supervisor used authority either actually or apparently conferred by the employer to further the alleged harassment.           

So What’s The Problem?                       

The Commission and the courts agree that the first ground of employer liability will rarely exist:  “Sexual harassment is not within the job description of any supervisor...in any reputable business.”  Hicks v. Gates Rubber Co., 833 F. 2d 1406, 1417-18 (10^th Cir. 1987).  More troubling for employers is the undetermined scope of potential liability on the remaining two grounds.  Recent court decisions have not been uniformly reassuring         

Who “Knows”?--Co-Worker Harassment.   

Courts almost universally recognize that “[i]t would be unrealistic to expect management to be aware of every impropriety committed by every low-level employee.”  Carr v. AllisonGas Turbine Division, 32 F. 3d 1007, 1009 (7^th 1994).  That is why an employer is liable for harassing conduct by co-workers only if it knew or should have known of the conduct and failed to take prompt and effective remedial action.  Yet every employee with the responsibility for directing or overseeing the work of others may be considered a “supervisor,” and therefore an “agent” of the employer for some purposes.  Is knowledge by even the lowliest supervisor sufficient?  Who in the management team must have “knowledge” of a hostile work environment before the employer “knows” of it?                                   

Employers often argue that knowledge must extend to senior management or to the human resources department before the employer should be charged with "“knowing.”  Juarez v. Ameritech Mobile Communications, Inc., 957 F. 2d 317 (7^th Cir. 1992), seemed to adopt just such an approach. Citing the general principle of agency law that “for knowledge to be imputed, the agent must have not just a duty in relation to the subject matter, but a duty to speak to his principal about the specific item of knowledge,” the court held that even if an accounts payable supervisor ”knew” of sexual harassment of the plaintiff by a co-worker, the employer was not charged with the knowledge because the supervisor:  (i) supervised only one employee; (ii) had “no involvement with the Human Resources Department, which deals with claims of sexual harassment”; (iii) had no responsibility for the alleged harasser; and (iv) had no duty under the employer’s sexual harassment policy “to report suspected instances of sexual harassment.”  957 F.2d at 321.

Other courts, though, have held (or simply assumed) that if conduct that is later alleged to constitute co-worker sexual harassment is (or might have been) witnessed by any employee with supervisory responsibilities, the employer itself is deemed to have knowledge.  See Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 447 (7^th Cir. 1994).  Yet in the real workplace, employers cannot reasonably expect their supervisors to report every instance of suspicious or ambiguous behavior. So sexual harassment policies that impose special duties on “all supervision” or “all management” to report suspected sexual harassment may actually provide the legal basis for imputing to the employer far broader “knowledge” than it could ever have in fact.  Policies should therefore make the human resources department or some other specific person or group responsible for enforcement and spell out that reporting complaints or concerns to anybody else in the organization may not be sufficient.  At the same time, every employee with supervisory responsibilities must be warned to err on the side of disclosure when dealing with conduct that might be claimed later to constitute sexual harassment.      

“Knows  What?--Co-Worker Harassment.    

An even more vexing issue for employers, as claims of sexual harassment expand from the original core of undeniably oppressive and sexually-oriented workplace conduct, is defining for their supervisors the kind of behaviors to report.  The employment discrimination laws do not prohibit boorish behavior, horseplay, jokes, rudeness, physical contact, bad temper, vulgar language, or even sexual innuendo.  One court recently held, for example, that “the fact that an employer has knowledge that some of its employees are having sexual affairs with one another does not give an employer knowledge that a hostile work environment exists.”  Ulrich v. K-Mart Corp.,  858 f. Supp. 1087, 1092 (D. Kan. 1994), aff’d mem., 70 F. 3d 1282 (10^th Cir. 1995).  But an employer cannot assume that a complaint or protest by the affected employee is always required before it “knows” of unwelcome behavior of a sexual nature by one employee toward another.  The Supreme Court has not addressed the issue in either Vinson or Harris; decisions of lower courts have recognized that sexual harassment may reach a level at which it can be presumed that a supervisor must have been aware that a hostile working environment existed.  E. g. Hall v. Gus Constr. Co., 842 F. 2d  1010, 1014-15 (8^th Cir. 1988).  Waltman was such a case.                                    

Supervisors must be made to understand, of course, that no  actual complaint about behavior that even might later be asserted to constitute sexual harassment can be ignored.  Likewise, with respect to uncomplained-of conduct simply observed by a supervisor, it will be no defense to say later, as one supervisor did in a recent case, that since he was not a woman he could not say whether the conduct would offend a woman.  See Carr v. Allison Gas turbine Division.  Similarly, supervisors cannot safely ignore otherwise questionable conduct because a female employee has a “reputation,” appears to be (or actually is) joining in the behavior voluntarily, or even is inciting or starting the conduct herself. 

For example, in Burns v. McGregor Electronic Industries, Inc., 989 F. 2d 959 (8^th Cir. 1993), the court of appeals resoundingly rejected, as a matter of law, a district court’s finding that a female employee could not have been genuinely offended by vulgar workplace behavior because she had posed nude in a motorcycle magazine.  In Steiner v. Showboat Operating Co., 25 F.3d 1459 (9^th Cir. 1994), cert. Denied.  115 S. Ct. 733 (1995), the court rejected the argument that a female floor person in a casino must have welcomed sexually offensive comments because she herself talked like a “drunken sailor.”  And in Carr v. Allison Gas Turbine Division. The court accepted the plaintiff’s explanation that she had joined enthusiastically in vulgar and sexually suggestive workplace behavior only in order to be “accepted” by her male co-workers.                               

Supervisory Harassment.   

Courts find it easy to preach that because employers select and train their own supervisors, they should not complain when held strictly liable for supervisory conduct.  But every employer knows that the reality is far different from the legal fiction:  in a large modern business enterprise, too many persons must be vested with some degree of supervisory authority.  Consequently, employers should be especially concerned about the evident willingness of some courts to impose liability for supervisory sexual harassment where the supervisor allegedly “uses his actual or apparent authority to further the harassment, or if he was otherwise aided in accomplishing the harassment by the existence of the agency relationship.”  Karibian v. Columbia University,  14 F.3d  773, 780-(2d Cir.),  cert. denied, 114 S. Ct. 2693 (1994).  Employers probably must simply resign themselves to strict liability for sexual harassment committed by a person sufficiently high up in management, although the test used by some courts, “significant control over plaintiff’s hiring, firing, or conditions of employment,”   Sauers v. Salt LakeCounty, 1 F. 3d 1122, 1125 (10^th Cir. 1993), for many large employers will result in absolute liability for the actions of at least scores (if not hundreds) of persons.  More important, the notion adopted in Karibian that the employer is held accountable for the actions of a supervisor at any level of responsibility, no matter how humble, if the supervisor relies on authority from the employer to further the harassment, could be the practical equivalent of absolute liability for any harassment committed by a supervisor.  Why?  Because the almost universal explanation offered by plaintiffs— for the failure to complain about supervisory harassment— is: “I was afraid of losing my job.”  The explanation has many attractive features to plaintiffs:  it is virtually impossible to disprove, resting as it does on the employee’s subjective state of mind; it is almost always plausible, given the high value most persons today place on job security; in extreme cases, mental health professionals can be brought in to explain how persons with the plaintiff’s personality characteristics are particularly prone to act submissively toward authority figures; and, as a bonus, it provides a face-saving justification for the plaintiff’s own participation in sexually-oriented behavior in the workplace, suitable for offer equally to the employer, to family or spouse, and to a court or jury.                       

Bouton v. BMW of North America, 29 F. 3d 103 (3d Cir. 1994); Gary v. Long, 59 F. 3d 1391 (D.C. Cir.), cert. denied, 116 S. Ct. 569 (1995).   

These opinions offer hope to employers.  In the first case, Bouton complained that her supervisor had created a hostile work environment. Reviewing the three bases of employer liability for such alleged conduct, the court first held that of course no employer gives a supervisor actual authority to create a sexually hostile environment.  Bouton, 29 F. 3d at 106-07.  The court next held that the employer’s prompt response to the plaintiff’s only actual complaint of harassment precluded liability on the theory that the employer negligently failed to take prompt and effective remedial action.  (It is noteworthy that the court did not impute to the employer a vice president’s knowledge of his own behavior; a complaint of sexual harassment to the human resources department or a superior of the vice president was required.) 

Finally, and most significantly, the Bouton court went on to reject the argument that an employer was liable simply by virtue of “giving the harasser power over the victim...”  Id. At 108. The court observed that although the alleged harasser was a high-level executive, the plaintiff’s complaints to the president of the company proved that she did not actually believe that the alleged harasser’s actions were authorized by the employer or represented the employer’s policy.  Additionally, the employer had a written internal grievance procedure, which the plaintiff pursued and which resulted in remedial action that stopped the alleged harassment.  That the grievance procedure did not specifically mention sexual harassment was not dispositive, according to the court; what mattered was that it was there, was used, and was effective. 

Joining others, the Bouton court held “that an effective grievance procedure—one that is known to the victim and that timely stops the harassment—shields the employer from Title VII liability for a hostile environment.”  It became the first court, though, to go on to hold that”[a] policy known to potential victims also eradicates apparent authority the harasser might otherwise possess.”  Id. At 110. (emphasis added).  In Gary, a supervisor allegedly tried to entice the plaintiff into a sexual relationship by promises that he could make her job easier and, when she declined, threatening her with adverse employment consequences if she did not accede to his sexual demands.  The plaintiff also accused the supervisor of verbal, and one incident of physical, abuse.  The court of appeals first held that the plaintiff failed to state a quid pro quo claim because the supervisor in fact did not take any adverse employment action against the plaintiff and did not in any event have the authority to do so.  The court wrote that “it takes more than saber rattling alone to impose quid pro quo liability on an employer; the supervisor must have wielded the authority entrusted to him to subject the victim to adverse job consequences as a result of her refusal submit to unwelcome sexual advance.”  Gary, 59 F. 3d at 1396. 

Echoing Bouton, the Gary court next rejected the plaintiff’s hostile-environment sexual harassment claim:  “[A]n employer may not be held liable for a supervisor’s hostile work environment harassment if the employer is able to establish that it had adopted policies and implemented measures such that the victimized employee either knew or should have known that the employer did not tolerate such conduct and that she could report it to the employer without fear of adverse consequences.”  Id. At 1398.  The court of appeals concluded by holding “that when, as here, an employer has taken energetic measures to discourage sexual harassment in the workplace and has established, advertised, and enforced effective procedures to deal with it when it does occur, it must be absolved of Title VII liability under a hostile work environment theory of sexual harassment.”  Id. (emphasis added).  If Bouton and Gary are followed by other courts, an employer’s strong, well-publicized anti-harassment policy, together with a record of training and enforcement, may be enough to establish, as a matter of law, that supervisors do not have even apparent authority for conditioning employment actions on an employee’s submission to a sexually-hostile work environment.      

What Should (Can) An Employer Do To Minimize Its Liability?           

These cases and our experience over the years in handling sexual harassment complaints hold several lessons for employers:           

First, employers must have a widely-distributed policy prohibiting sexual  harassment.  Periodic re-distribution of the policy is suggested.  It would     be wise to obtain specific written acknowledgment from all employees and new employees of their familiarity with and understanding of the policy.  In particular, employees should acknowledge that compliance with the policy   is a condition of employment and continued employment.

Second, the policy should explain how employees may lodge complaints.

Third, the complaint procedure must take into account that many complaints involve an employee’s supervisor.  The policy accordingly will not be deemed effective if it requires a complaint to be lodged in the first          instance with the employee’s immediate supervisor.  See Vinson, 477 U.S. at 73 (noting that defect in the employer’s grievance system).           

Fourth, the policy should explain that complaints will be investigated andn remedial action taken, if appropriate.

Fifth, the policy should caution employees that it may not be possible to treat the complaint in strict confidence.  Many employees expect that their complaint can be handled without the accused ever knowing that the      complaint was filed or the identity of the complainant; that simply is not possible (or even recommended) except in the most unusual set of circumstances.

Sixth, the policy should promise employees that they will not suffer adverse employment actions because they have in good faith made complaints of   sexual harassment.  At the same time, employees should be cautioned that disciplinary action may be imposed if it is found that the complaint was brought in bad faith.

Seventh, the policy should plainly state that no supervisor or manager has authority to waive the terms of the policy or act contrary to it—a “no-person-is-above-the-law” clause.

Eighth, employers must monitor the working environment of employees who      have made complaints to ensure that there has been no recurrence of  the objectionable behavior or retaliation by the accused or co-employees.

Ninth, employers should consider periodically publicizing, in general terms, the actions they have taken to enforce their sexual harassment policy—consistent of course with the legitimate privacy interests of the alleged    harasser—so that those employees who have never complained themselves cannot plausibly claim that they believed the policy was just words on paper.

Tenth, employers should periodically train supervisors about their responsibilities under the policy, which include not only reporting   complaints of sexual harassment, but actively preventing objectionable   conduct or intervening without the necessity of a complaint.  The training sessions should be documented.  Supervisors must understand that their failure to enforce the policy will result in the employer’s liability and, perhaps, their own. 

Suggestions For Investigation Complaints of Sexual Harassment.           

Only the broadest guidelines can be given.  Each investigation of necessity will depend on the facts and circumstances presented. 

Who Should Investigate?                       

The investigator(s) should have at least some basic knowledge of the legal principles discussed above.  The more experience and training the investigator has the better.  The investigator should not have a personal relationship with the accuser or accused.  In some instances, it may be advisable to consult legal counsel about the investigation or have counsel assist in or conduct the investigation. 

Interview the Complainant.                       

• Investigate all complaints, no matter how spurious some may seem.
• Give the complaining employee an opportunity to present all the facts that have led her to believe that she has been subject to sexual harassment. 
• Elicit specific information as to the date, time, and place of every incident and all relevant details. 
• Ask if there were any witnesses to the alleged misconduct, and if she is aware of whether other employees have been subjected to similar incidents. 
• Ask if the employee has evidence to support the complaint—tape recordings, letters, cards, pictures, diaries, etc. 
• Determine if the complainant has massed work or incurred any unreimbursed medical or other expenses because of the complained-of conduct. 
• Ask if the employee has complained about this or similar conduct before; if so, identify to whom she complained, when, and the resolution of the complaint. 
• Ask the employee what remedial action she believes would be appropriate. 
• Reduce the interview to writing or ask the employee to do so.  A form can be used for this purpose.  The employee should be asked to sign the statement and acknowledge that the information is true and complete.  A sample acknowledgement might read:  “To investigate your complaint, it will be necessary to interview you, the person(s) about whom you have complained, and any potential witnesses or others who might be able to provide relevant information. 
• All persons interviewed will be notified that the investigation is confidential and that unauthorized disclosure of information about the investigation may result in disciplinary action up to and including discharge.  This pledge of confidentiality applies to you as well.  You are not to discuss your complaint with any employee except those investigating the complaint.” 
• The employee should not be promised a certain outcome or that the investigation will be completed within a certain time. But what if the complaining employee does not want an investigation, i.e. does not want to file a “formal complaint”? 
• The first step is to determine why.  The employee may legitimately fear retaliation or embarrassment.  The investigator’s job is to clam those fears.  Explain that the complaint will be kept confidential to the extent possible, but that no action can be taken to redress the situation without an investigation. 
• Review the company’s anti-retaliation stance, but be prepared to live up to it. 
• The investigator also should stress that the company wishes to ensure that its workplace is free from sexual harassment, but cannot do so without the cooperation of employees.  The difficulty for the employer is its “knowledge” of a potentially sexual-hostile situation is not magically “erased” if the employee does not wish to pursue the matter.  Accordingly, if the complaint can be investigated without the complainant’s cooperation and without revealing her identity, do so.  If not, memorialize the employee’s wish that an investigation not ensue, your attempts to persuade her otherwise, and, if at all possible, have the employee acknowledge the memorandum.  

Interview the Accused Harasser.                       

• The investigator should determine if prior complaints have been made against the accused and, if so, the details of the complaints and any action taken. 
• Explain to the accused that a complaint of misconduct has been received and that you are attempting to determine whether the allegations have any merit before any personnel decisions are made. 
• Advise the alleged harasser that the investigation involves serious allegations, is being conducted in a professional and neutral manner, and that all statements will be handled as discreetly as possible, with disclosures made only when necessary to carry out a complete, accurate, and fair investigation. 
• Stress to the alleged harasser that you are approaching this matter without any preconceived notions, and that you are asking to hear his “side of the story” with a fair and open mind.
• Give the accused harasser a copy of the complaint or at least inform him of the specifics of the complaint.  Ask him to respond in writing to each factual allegation and to identify potential witnesses.  If the accused denies the truthfulness of the complaint, ask him if he has an alternative explanation for the allegation. 
• Tell the accused that the investigation is confidential, that he is not to contact his accuser or any potential witnesses, and that the unauthorized disclosure of information about the investigation may result in disciplinary action up to and including discharge.  A form similar to the complaint form and acknowledgement may be used.  

Take Stock.                      

The investigator should review the statements and determine if there are any points of agreement.  A list of witnesses to interview should be prepared.  It may be appropriate in some situations to remove the accused, accuser, or both from the workplace while the investigation is being conducted. 

Interview Witnesses.                       

Each witness should be informed about the general nature of the investigation and the allegations insofar as they involve or may have been witnessed by the employee being interviewed.  The witness should prepare a written statement and sign an acknowledgement of confidentiality, with a specific warning that a breach of confidentiality will result in discipline.  The investigator should take care not to express an opinion about the validity of the complaint.  It may be appropriate to ask the wi6tness if the accused or accuser would have any reason to provide inaccurate or misleading information. 

Take Stock (Again).                       

The investigator should consult with decision-makers and, perhaps, legal counsel, to review the investigation and determine if further investigation is needed, and, if not, how to conclude the investigation. 

Take Action.                       

If the complaint is supported by the investigation, the investigator should determine the discipline imposed in       other cases in which violations of the sexual harassment policy were found.  If the historical cases and the current complaint involve similar conduct or conduct of comparable seriousness, the investigator should determine if the disciplinary action taken in the historical cases was effective.  If so, the same or similar disciplinary measures should be taken in the current case. 

Deviation from historical disciplinary actions may be appropriate based on any number of circumstances, such as the existence of prior complaints against the accused and the accused’s status, i.e. more severe discipline may be warranted if the accused is a supervisor.  The key is that the discipline must be calculated to end the harassment.  A written warning usually is the minimum discipline recommended. 

Other possible disciplinary actions include (alone or in combination) counseling; training, transfer; suspension; (7) delay or withholding of promotion, raise, or bonus; demotion; discharge. 

The investigator then should determine if any action is necessary to make the complainant “whole,” including payment for missed workdays; reimbursement of medical expenses; correction of discriminatory employment actions,  such as a poor performance evaluation, withheld pay, or missed promotion; and in serious cases referral to the                

(7)     Employers should avoid disciplinary suspensions without pay of less than a week for exempt employees to avoid losing the employee’s exempt status under the Fair Labor Standards Act. 

The complainant should not be transferred unless at her request or with her written and unequivocal agreement.  The investigator should prepare a record of the investigation that reflects the rationale of his or her findings and, if necessary, why a particular disciplinary action was chosen.   If the complaint is not supported by the investigation, the investigator still may recommend that one or both parties be counseled about the company’s sexual harassment policy, that the parties’ work relationship be monitored, or that other adjustments in the parties’ working relationship be made.           

Communicate the Results.                                   

• If the complaint is supported by the investigation, the investigator and any other appropriate company officials should so inform the accused employee, determine if he has any rebuttal information, and inform his of the disciplinary action to be imposed.   
• The accused should be reminded that his pledge of confidentiality continues and that inquiries from other employees about the investigation should be referred to the investigator or other appropriate company officials. If employment is not terminated, the accused should be firmly directed to avoid any conduct that could be perceived as retaliatory, such as contacting the complainant or witnesses about the complaint or encouraging others to do so. 
• Explain that any such retaliatory action will result in additional discipline and possible discharge from employment.   
• The complainant then should be told of the results of the investigation.  She should be informed that the company has taken appropriate disciplinary action against the accused, but it is not necessary to disclose the action taken.  
• The complainant should be thanked for bringing the issue to management’s attention and for cooperating in the investigation.
• The complainant should be informed that the accused (and others if appropriate) will be directed to take no retaliatory action against her, and that if she believes she has been retaliated against she should report it immediately.   
• The complainant should be reminded that her pledge of confidentiality continues and that inquiries from co-workers should be referred to the investigator or other appropriate company officials.                                   
• If the complaint is not supported by the investigation, the complainant should be so informed and asked if she has any additional information to present. 
• The complainant in any event should be thanked for bringing the issue to management’s attention and for cooperating in the investigation.   
• The complainant should be informed that the accused (and others if appropriate) will be directed to take no retaliatory action against her, and that if she believes she has been retaliated against she should report it immediately.   
• The complainant should be reminded that her pledge of confidentiality continues and that inquiries from co-workers should be referred to the investigator or other appropriate company officials.
• The accused then should be informed of the results of the investigation and that no adverse action will be taken against him as a result of the complaint.   
• He should be reminded that his pledge of confidentiality continues and that inquiries from other employees about the investigation should be referred to the investigator or other appropriate company official.   
• The accused should be firmly directed to avoid any conduct that could be perceived as retaliatory, such as contacting the complainant or witnesses about the complaint or encouraging others to do so.  Explain that any such retaliatory action will result in discipline and possible discharge from employment.                       
• Whether or not the complaint was sustained, it is advisable to “check-up” on the complainant to ensure that the complained-of conduct was ended, assuming it occurred, and that no retaliation has taken place,  These check-ups should be documented. 
• It may be appropriate or necessary to communicate the results of the investigation to other management officials. 
• In particular, the parties’ supervisors should be informed so that they can monitor the workplace for retaliatory action. 
• Any managers or supervisors who are so informed should of course be instructed to keep the matter confidential. 
• Except in unusual circumstances, non-supervisory employees should not be informed of the results of the investigation. 
• If inquiries are made, employees generally should be informed that the situation has been resolved without further elaboration. 
• If it is necessary to reveal the results of the investigation, general, non-inflammatory, and non-defamatory language should be used.  For example, employees might be told that a confidential investigation was conducted with the cooperation of all involved and (i) it was determined that no further action by management needed to be taken; or as the case may be, (ii) appropriate steps have been taken to resolve the complaint.  

The Aftermath.                       

• The employer must be sensitive to retaliatory conduct, even that, like “shunning,” which may seem trivial.  Otherwise, an employee without a valid sexual harassment suit may find herself with much more attractive retaliation claim.           
• It may be appropriate to provide remedial training to employees or supervisors on the company’s sexual harassment policy.           
• Materials relating to the investigation should be placed in a confidential file and not made part of either party’s personnel file.  If discipline ultimately is imposed, a simple summary memorandum setting out the reasons should be placed in the appropriate party’s personnel file.