A tangible employment action, in most instances. Harasser in Supervisory
actions include:
- undesirable reassignment;
- a decision causing a significant change in benefits;
- compensation decisions; and
- work assignment.
Any employment action qualifies as "tangible" if it results in a
significant change in employment status. For example, significantly
changing an individual's duties in his or her existing job constitutes a
tangible employment action regardless of whether the individual retains
the same salary and benefits.32
Similarly, altering an individual's duties in a way that blocks his or
her opportunity for promotion or salary increases also constitutes a
tangible employment action.33
On the other hand, an employment action does not reach the threshold
of "tangible" if it results in only an insignificant change in the
complainant's employment status. For example, altering an individual's
job title does not qualify as a tangible employment action if there is
no change in salary, benefits, duties, or prestige, and the only effect
is a bruised ego.34 However, if
there is a significant change in the status of the position because the
new title is less prestigious and thereby effectively constitutes a
demotion, a tangible employment action would be found.35
If a supervisor undertakes or recommends a tangible job action based
on a subordinate's response to unwelcome sexual demands, the employer is
liable and cannot raise the affirmative defense. The result is the same
whether the employee rejects the demands and is subjected to an adverse
tangible employment action or submits to the demands and consequently
obtains a tangible job benefit.36
Such harassment previously would have been characterized as "quid pro
quo." It would be a perverse result if the employer is foreclosed from
raising the affirmative defense if its supervisor denies a tangible job
benefit based on an employee's rejection of unwelcome sexual demands,
but can raise the defense if its supervisor grants a tangible job
benefit based on submission to such demands. The Commission rejects such
an analysis. In both those situations the supervisor undertakes a
tangible employment action on a discriminatory basis. The Supreme Court
stated that there must be a significant change in employment
status; it did not require that the change be adverse in order to
qualify as tangible.37
If a challenged employment action is not "tangible," it may still be
considered, along with other evidence, as part of a hostile environment
claim that is subject to the affirmative defense. In Ellerth, the
Court concluded that there was no tangible employment action because the
supervisor never carried out his threats of job harm. Ellerth could
still proceed with her claim of harassment, but the claim was properly
"categorized as a hostile work environment claim which requires a
showing of severe or pervasive conduct." 118 S. Ct. at 2265.
C. Link Between Harassment and Tangible Employment
Action
When harassment culminates in a tangible employment action, the
employer cannot raise the affirmative defense. This sort of claim is
analyzed like any other case in which a challenged employment action is
alleged to be discriminatory. If the employer produces evidence of a
non- discriminatory explanation for the tangible employment action, a
determination must be made whether that explanation is a pretext
designed to hide a discriminatory motive.
For example, if an employee alleged that she was demoted because she
refused her supervisor's sexual advances, a determination would have to
be made whether the demotion was because of her response to the
advances, and hence because of her sex. Similarly, if an employee
alleges that he was discharged after being subjected to severe or
pervasive harassment by his supervisor based on his national origin, a
determination would have to be made whether the discharge was because
of the employee's national origin.
A strong inference of discrimination will arise whenever a harassing
supervisor undertakes or has significant input into a tangible
employment action affecting the victim,38
because it can be "assume[d] that the harasser . . . could not act as an
objective, non-discriminatory decision maker with respect to the
plaintiff."39 However, if the
employer produces evidence of a non-discriminatory reason for the
action, the employee will have to prove that the asserted reason was a
pretext designed to hide the true discriminatory motive.
If it is determined that the tangible action was based on a
discriminatory reason linked to the preceding harassment, relief could
be sought for the entire pattern of misconduct culminating in the
tangible employment action, and no affirmative defense is available.40
However, the harassment preceding the tangible employment action must be
severe or pervasive in order to be actionable.41
If the tangible employment action was based on a non-discriminatory
motive, then the employer would have an opportunity to raise the
affirmative defense to a claim based on the preceding harassment.42
V. Harassment by Supervisor That Does Not Result in a
Tangible Employment Action
A. Standard of Liability
When harassment by a supervisor creates an unlawful hostile
environment but does not result in a tangible employment action, the
employer can raise an affirmative defense to liability or damages, which
it must prove by a preponderance of the evidence. The defense consists
of two necessary elements:
(a) the employer exercised reasonable care to
prevent and correct promptly any harassment; and
(b) the employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.
B. Effect of Standard
If an employer can prove that it discharged its duty of reasonable
care and that the employee could have avoided all of the harm but
unreasonably failed to do so, the employer will avoid all liability for
unlawful harassment.43 For
example, if an employee was subjected to a pattern of disability-based
harassment that created an unlawful hostile environment, but the
employee unreasonably failed to complain to management before she
suffered emotional harm and the employer exercised reasonable care to
prevent and promptly correct the harassment, then the employer will
avoid all liability.
If an employer cannot prove that it discharged its duty of reasonable
care and that the employee unreasonably failed to avoid the harm,
the employer will be liable. For example, if unlawful harassment by a
supervisor occurred and the employer failed to exercise reasonable care
to prevent it, the employer will be liable even if the employee
unreasonably failed to complain to management or even if the employer
took prompt and appropriate corrective action when it gained notice.44
In most circumstances, if employers and employees discharge their
respective duties of reasonable care, unlawful harassment will be
prevented and there will be no reason to consider questions of
liability. An effective complaint procedure "encourages employees to
report harassing conduct before it becomes severe or pervasive,"45
and if an employee promptly utilizes that procedure, the employer can
usually stop the harassment before actionable harm occurs.46
In some circumstances, however, unlawful harassment will occur and
harm will result despite the exercise of requisite legal care by the
employer and employee. For example, if an employee's supervisor directed
frequent, egregious racial epithets at him that caused emotional harm
virtually from the outset, and the employee promptly complained,
corrective action by the employer could prevent further harm but might
not correct the actionable harm that the employee already had suffered.47
Alternatively, if an employee complained about harassment before it
became severe or pervasive, remedial measures undertaken by the employer
might fail to stop the harassment before it reaches an actionable level,
even if those measures are reasonably calculated to halt it. In these
circumstances, the employer will be liable because the defense requires
proof that it exercised reasonable legal care and that the
employee unreasonably failed to avoid the harm. While a notice- based
negligence standard would absolve the employer of liability, the
standard set forth in Ellerth and Faragher does not. As
the Court explained, vicarious liability sets a "more stringent
standard" for the employer than the "minimum standard" of negligence
theory.48
While this result may seem harsh to a law abiding employer, it is
consistent with liability standards under the anti-discrimination
statutes which generally make employers responsible for the
discriminatory acts of their supervisors.49
If, for example, a supervisor rejects a candidate for promotion because
of national origin-based bias, the employer will be liable regardless of
whether the employee complained to higher management and regardless of
whether higher management had any knowledge about the supervisor's
motivation.50 Harassment is the
only type of discrimination carried out by a supervisor for which an
employer can avoid liability, and that limitation must be construed
narrowly. The employer will be shielded from liability for harassment by
a supervisor only if it proves that it exercised reasonable care in
preventing and correcting the harassment and that the employee
unreasonably failed to avoid all of the harm. If both parties exercise
reasonable care, the defense will fail.
In some cases, an employer will be unable to avoid liability
completely, but may be able to establish the affirmative defense as a
means to limit damages.51 The
defense only limits damages where the employee reasonably could have
avoided some but not all of the harm from the harassment. In the example
above, in which the supervisor used frequent, egregious racial epithets,
an unreasonable delay by the employee in complaining could limit damages
but not eliminate liability entirely. This is because a reasonably
prompt complaint would have reduced, but not eliminated, the actionable
harm.52
C. First Prong of Affirmative Defense: Employer's Duty
to Exercise Reasonable Care
The first prong of the affirmative defense requires a showing by the
employer that it undertook reasonable care to prevent and promptly
correct harassment. Such reasonable care generally requires an employer
to establish, disseminate, and enforce an anti-harassment policy and
complaint procedure and to take other reasonable steps to prevent and
correct harassment. The steps described below are not mandatory
requirements - - whether or not an employer can prove that it exercised
reasonable care depends on the particular factual circumstances and, in
some cases, the nature of the employer's workforce. Small employers may
be able to effectively prevent and correct harassment through informal
means, while larger employers may have to institute more formal
mechanisms.53
There are no "safe harbors" for employers based on the written
content of policies and procedures. Even the best policy and complaint
procedure will not alone satisfy the burden of proving reasonable care
if, in the particular circumstances of a claim, the employer failed to
implement its process effectively.54
If, for example, the employer has an adequate policy and complaint
procedure and properly responded to an employee's complaint of
harassment, but management ignored previous complaints by other
employees about the same harasser, then the employer has not exercised
reasonable care in preventing the harassment.55
Similarly, if the employer has an adequate policy and complaint
procedure but an official failed to carry out his or her responsibility
to conduct an effective investigation of a harassment complaint, the
employer has not discharged its duty to exercise reasonable care.
Alternatively, lack of a formal policy and complaint procedure will not
defeat the defense if the employer exercised sufficient care through
other means.
1. Policy and Complaint Procedure
It generally is necessary for employers to establish, publicize, and
enforce anti-harassment policies and complaint procedures. As the
Supreme Court stated, "Title VII is designed to encourage the creation
of anti-harassment policies and effective grievance mechanisms."
Ellerth, 118 S. Ct. at 2270. While the Court noted that this "is not
necessary in every instance as a matter of law,"56
failure to do so will make it difficult for an employer to prove that it
exercised reasonable care to prevent and correct harassment.57
(See section V(C)(3), below, for discussion of preventive and corrective
measures by small businesses.)
An employer should provide every employee with a copy of the policy
and complaint procedure, and redistribute it periodically. The policy
and complaint procedure should be written in a way that will be
understood by all employees in the employer's workforce. Other measures
to ensure effective dissemination of the policy and complaint procedure
include posting them in central locations and incorporating them into
employee handbooks. If feasible, the employer should provide training to
all employees to ensure that they understand their rights and
responsibilities.
An anti-harassment policy and complaint procedure
should contain, at a minimum, the following elements:
- A clear explanation of prohibited conduct;
- Assurance that employees who make complaints of harassment or
provide information related to such complaints will be protected
against retaliation;
- A clearly described complaint process that provides accessible
avenues of complaint;
- Assurance that the employer will protect the confidentiality of
harassment complaints to the extent possible;
- A complaint process that provides a prompt, thorough, and
impartial investigation; and
- Assurance that the employer will take immediate and appropriate
corrective action when it determines that harassment has occurred.
The above elements are explained in the following subsections.
a. Prohibition Against Harassment
An employer's policy should make clear that it will not tolerate
harassment based on sex (with or without sexual conduct), race, color,
religion, national origin, age, disability, and protected activity (i.e.,
opposition to prohibited discrimination or participation in the
statutory complaint process). This prohibition should cover harassment
by anyone in the workplace – supervisors, co- workers, or
non-employees.58 Management should
convey the seriousness of the prohibition. One way to do that is for the
mandate to "come from the top," i.e., from upper management.
The policy should encourage employees to report harassment before
it becomes severe or pervasive. While isolated incidents of harassment
generally do not violate federal law, a pattern of such incidents may be
unlawful. Therefore, to discharge its duty of preventive care, the
employer must make clear to employees that it will stop harassment
before it rises to the level of a violation of federal law.
b. Protection Against Retaliation
An employer should make clear that it will not tolerate adverse
treatment of employees because they report harassment or provide
information related to such complaints. An anti- harassment policy and
complaint procedure will not be effective without such an assurance.59
Management should undertake whatever measures are necessary to ensure
that retaliation does not occur. For example, when management
investigates a complaint of harassment, the official who interviews the
parties and witnesses should remind these individuals about the
prohibition against retaliation. Management also should scrutinize
employment decisions affecting the complainant and witnesses during and
after the investigation to ensure that such decisions are not based on
retaliatory motives.
c. Effective Complaint Process
An employer's harassment complaint procedure should be designed to
encourage victims to come forward. To that end, it should clearly
explain the process and ensure that there are no unreasonable obstacles
to complaints. A complaint procedure should not be rigid, since that
could defeat the goal of preventing and correcting harassment. When an
employee complains to management about alleged harassment, the employer
is obligated to investigate the allegation regardless of whether it
conforms to a particular format or is made in writing.
The complaint procedure should provide accessible points of contact
for the initial complaint.60 A
complaint process is not effective if employees are always required to
complain first to their supervisors about alleged harassment, since the
supervisor may be a harasser.61
Moreover, reasonable care in preventing and correcting harassment
requires an employer to instruct all supervisors to report complaints of
harassment to appropriate officials.62
It is advisable for an employer to designate at least one official
outside an employee's chain of command to take complaints of harassment.
For example, if the employer has an office of human resources, one or
more officials in that office could be authorized to take complaints.
Allowing an employee to bypass his or her chain of command provides
additional assurance that the complaint will be handled in an impartial
manner, since an employee who reports harassment by his or her
supervisor may feel that officials within the chain of command will more
readily believe the supervisor's version of events.
It also is important for an employer's anti-harassment policy and
complaint procedure to contain information about the time frames for
filing charges of unlawful harassment with the
EEOC
or state fair employment practice agencies and to explain that the
deadline runs from the last date of unlawful harassment, not from the
date that the complaint to the employer is resolved.63
While a prompt complaint process should make it feasible for an employee
to delay deciding whether to file a charge until the complaint to the
employer is resolved, he or she is not required to do so.64
d. Confidentiality
An employer should make clear to employees that it will protect the
confidentiality of harassment allegations to the extent possible. An
employer cannot guarantee complete confidentiality, since it cannot
conduct an effective investigation without revealing certain information
to the alleged harasser and potential witnesses. However, information
about the allegation of harassment should be shared only with those who
need to know about it. Records relating to harassment complaints should
be kept confidential on the same basis.65
A conflict between an employee's desire for confidentiality and the
employer's duty to investigate may arise if an employee informs a
supervisor about alleged harassment, but asks him or her to keep the
matter confidential and take no action. Inaction by the supervisor in
such circumstances could lead to employer liability. While it may seem
reasonable to let the employee determine whether to pursue a complaint,
the employer must discharge its duty to prevent and correct harassment.66
One mechanism to help avoid such conflicts would be for the employer to
set up an informational phone line which employees can use to discuss
questions or concerns about harassment on an anonymous basis.67
e. Effective Investigative Process
An employer should set up a mechanism for a prompt, thorough, and
impartial investigation into alleged harassment. As soon as management
learns about alleged harassment, it should determine whether a detailed
fact-finding investigation is necessary. For example, if the alleged
harasser does not deny the accusation, there would be no need to
interview witnesses, and the employer could immediately determine
appropriate corrective action.
If a fact-finding investigation is necessary, it should be launched
immediately. The amount of time that it will take to complete the
investigation will depend on the particular circumstances.68
If, for example, multiple individuals were allegedly harassed, then it
will take longer to interview the parties and witnesses.
It may be necessary to undertake intermediate measures before
completing the investigation to ensure that further harassment does not
occur. Examples of such measures are making scheduling changes so as to
avoid contact between the parties; transferring the alleged harasser; or
placing the alleged harasser on non-disciplinary leave with pay pending
the conclusion of the investigation. The complainant should not be
involuntarily transferred or otherwise burdened, since such measures
could constitute unlawful retaliation.
The employer should ensure that the individual who conducts the
investigation will objectively gather and consider the relevant facts.
The alleged harasser should not have supervisory authority over the
individual who conducts the investigation and should not have any direct
or indirect control over the investigation. Whoever conducts the
investigation should be well-trained in the skills that are required for
interviewing witnesses and evaluating credibility.
i. Questions to Ask Parties and Witnesses
When detailed fact-finding is necessary, the investigator should
interview the complainant, the alleged harasser, and third parties who
could reasonably be expected to have relevant information. Information
relating to the personal lives of the parties outside the workplace
would be relevant only in unusual circumstances. When interviewing the
parties and witnesses, the investigator should refrain from offering his
or her opinion.
The following are examples of questions that may be appropriate to
ask the parties and potential witnesses. Any actual investigation must
be tailored to the particular facts.
Questions to Ask the Complainant:
- Who, what, when, where, and how: Who committed the
alleged harassment? What exactly occurred or was said?
When did it occur and is it still ongoing? Where did it
occur? How often did it occur? How did it affect you?
- How did you react? What response did you make when the
incident(s) occurred or afterwards?
- How did the harassment affect you? Has your job been affected in
any way?
- Are there any persons who have relevant information? Was anyone
present when the alleged harassment occurred? Did you tell anyone
about it? Did anyone see you immediately after episodes of alleged
harassment?
- Did the person who harassed you harass anyone else? Do you know
whether anyone complained about harassment by that person?
- Are there any notes, physical evidence, or other documentation
regarding the incident(s)?
- How would you like to see the situation resolved?
- Do you know of any other relevant information?
Questions to Ask the Alleged Harasser:
- What is your response to the allegations?
- If the harasser claims that the allegations are false, ask why
the complainant might lie.
- Are there any persons who have relevant information?
- Are there any notes, physical evidence, or other documentation
regarding the incident(s)?
- Do you know of any other relevant information?
Questions to Ask Third Parties:
- What did you see or hear? When did this occur? Describe the
alleged harasser's behavior toward the complainant and toward others
in the workplace.
- What did the complainant tell you? When did s/he tell you this?
- Do you know of any other relevant information?
- Are there other persons who have relevant information?
ii. Credibility Determinations
If there are conflicting versions of relevant events, the employer
will have to weigh each party's credibility. Credibility assessments can
be critical in determining whether the alleged harassment in fact
occurred. Factors to consider include:
- Inherent plausibility: Is the testimony believable on its
face? Does it make sense?
- Demeanor: Did the person seem to be telling the truth or
lying?
- Motive to falsify: Did the person have a reason to lie?
- Corroboration: Is there witness testimony (such as
testimony by eye-witnesses, people who saw the person soon after the
alleged incidents, or people who discussed the incidents with him or
her at around the time that they occurred) or physical evidence
(such as written documentation) that corroborates the party's
testimony?
- Past record: Did the alleged harasser have a history of
similar behavior in the past?
None of the above factors are determinative as to credibility. For
example, the fact that there are no eye-witnesses to the alleged
harassment by no means necessarily defeats the complainant's
credibility, since harassment often occurs behind closed doors.
Furthermore, the fact that the alleged harasser engaged in similar
behavior in the past does not necessarily mean that he or she did so
again.
iii. Reaching a Determination
Once all of the evidence is in, interviews are finalized, and
credibility issues are resolved, management should make a determination
as to whether harassment occurred. That determination could be made by
the investigator, or by a management official who reviews the
investigator's report. The parties should be informed of the
determination.
In some circumstances, it may be difficult for management to reach a
determination because of direct contradictions between the parties and a
lack of documentary or eye-witness corroboration. In such cases, a
credibility assessment may form the basis for a determination, based on
factors such as those set forth above.
If no determination can be made because the evidence is inconclusive,
the employer should still undertake further preventive measures, such as
training and monitoring.
f. Assurance of Immediate and Appropriate Corrective
Action
An employer should make clear that it will undertake immediate and
appropriate corrective action, including discipline, whenever it
determines that harassment has occurred in violation of the employer's
policy. Management should inform both parties about these measures.69
Remedial measures should be designed to stop the harassment, correct
its effects on the employee, and ensure that the harassment does not
recur. These remedial measures need not be those that the employee
requests or prefers, as long as they are effective.
In determining disciplinary measures, management should keep in mind
that the employer could be found liable if the harassment does not stop.
At the same time, management may have concerns that overly punitive
measures may subject the employer to claims such as wrongful discharge,
and may simply be inappropriate.
To balance the competing concerns, disciplinary measures should be
proportional to the seriousness of the offense.70
If the harassment was minor, such as a small number of "off-color"
remarks by an individual with no prior history of similar misconduct,
then counseling and an oral warning might be all that is necessary. On
the other hand, if the harassment was severe or persistent, then
suspension or discharge may be appropriate.71
Remedial measures should not adversely affect the complainant. Thus,
for example, if it is necessary to separate the parties, then the
harasser should be transferred (unless the complainant prefers
otherwise).72 Remedial responses
that penalize the complainant could constitute unlawful retaliation and
are not effective in correcting the harassment.73
Remedial measures also should correct the effects of the harassment.
Such measures should be designed to put the employee in the position
s/he would have been in had the misconduct not occurred.
Examples of Measures to Stop the Harassment and Ensure that it
Does Not Recur:
- oral74 or written warning
or reprimand;
- transfer or reassignment;
- demotion;
- reduction of wages;
- suspension;
- discharge;
- training or counseling of harasser to ensure that s/he
understands why his or her conduct violated the employer's
anti-harassment policy; and
- monitoring of harasser to ensure that harassment stops.
Examples of Measures to Correct the Effects of the Harassment:
- restoration of leave taken because of the harassment;
- expungement of negative evaluation(s) in employee's personnel
file that arose from the harassment;
- reinstatement;
- apology by the harasser;
- monitoring treatment of employee to ensure that s/he is not
subjected to retaliation by the harasser or others in the work place
because of the complaint; and
- correction of any other harm caused by the harassment (e.g.,
compensation for losses).
2. Other Preventive and Corrective Measures
An employer's responsibility to exercise reasonable care to prevent
and correct harassment is not limited to implementing an anti-harassment
policy and complaint procedure. As the Supreme Court stated, "the
employer has a greater opportunity to guard against misconduct by
supervisors than by common workers; employers have greater opportunity
and incentive to screen them, train them, and monitor their
performance." Faragher, 118 S. Ct. at 2291.
An employer's duty to exercise due care includes instructing all of
its supervisors and managers to address or report to appropriate
officials complaints of harassment regardless of whether they are
officially designated to take complaints75
and regardless of whether a complaint was framed in a way that conforms
to the organization's particular complaint procedures.76
For example, if an employee files an
EEOC
charge alleging unlawful harassment, the employer should launch an
internal investigation even if the employee did not complain to
management through its internal complaint process.
Furthermore, due care requires management to correct harassment
regardless of whether an employee files an internal complaint, if the
conduct is clearly unwelcome. For example, if there are areas in the
workplace with graffiti containing racial or sexual epithets, management
should eliminate the graffiti and not wait for an internal complaint.77
An employer should ensure that its supervisors and managers
understand their responsibilities under the organization's
anti-harassment policy and complaint procedure. Periodic training of
those individuals can help achieve that result. Such training should
explain the types of conduct that violate the employer's anti-harassment
policy; the seriousness of the policy; the responsibilities of
supervisors and managers when they learn of alleged harassment; and the
prohibition against retaliation.
An employer should keep track of its supervisors' and managers'
conduct to make sure that they carry out their responsibilities under
the organization's anti-harassment program.78
For example, an employer could include such compliance in formal
evaluations.
Reasonable preventive measures include screening applicants for
supervisory jobs to see if any have a record of engaging in harassment.
If so, it may be necessary for the employer to reject a candidate on
that basis or to take additional steps to prevent harassment by that
individual.
Finally, it is advisable for an employer to keep records of all
complaints of harassment. Without such records, the employer could be
unaware of a pattern of harassment by the same individual. Such a
pattern would be relevant to credibility assessments and disciplinary
measures.79
3. Small Businesses
It may not be necessary for an employer of a small workforce to
implement the type of formal complaint process described above. If it
puts into place an effective, informal mechanism to prevent and correct
harassment, a small employer could still satisfy the first prong of the
affirmative defense to a claim of harassment.80
As the Court recognized in Faragher, an employer of a small
workforce might informally exercise sufficient care to prevent
harassment.81
For example, such an employer's failure to disseminate a written
policy against harassment on protected bases would not undermine the
affirmative defense if it effectively communicated the prohibition and
an effective complaint procedure to all employees at staff meetings. An
owner of a small business who regularly meets with all of his or her
employees might tell them at monthly staff meetings that he or she will
not tolerate harassment and that anyone who experiences harassment
should bring it "straight to the top."
If a complaint is made, the business, like any other employer, must
conduct a prompt, thorough, and impartial investigation and undertake
swift and appropriate corrective action where appropriate. The questions
set forth in Section V(C)(1)(e)(i), above, can help guide the inquiry
and the factors set forth in Section V(C)(1)(e)(ii) should be considered
in evaluating the credibility of each of the parties.
D. Second Prong of Affirmative Defense: Employee's Duty
to Exercise Reasonable Care
The second prong of the affirmative defense requires a showing by the
employer that the aggrieved employee "unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise." Faragher, 118 S. Ct. at
2293; Ellerth, 118 S. Ct. at 2270.
This element of the defense arises from the general theory "that a
victim has a duty 'to use such means as are reasonable under the
circumstances to avoid or minimize the damages' that result from
violations of the statute." Faragher, 18 S. Ct. at 2292,
quoting Ford Motor Co. v.
EEOC,
458 U.S. 219, 231 n.15 (1982). Thus an employer who exercised reasonable
care as described in subsection V(C), above, is not liable for unlawful
harassment if the aggrieved employee could have avoided all of the
actionable harm. If some but not all of the harm could have been
avoided, then an award of damages will be mitigated accordingly.82
A complaint by an employee does not automatically defeat the
employer's affirmative defense. If, for example, the employee provided
no information to support his or her allegation, gave untruthful
information, or otherwise failed to cooperate in the investigation, the
complaint would not qualify as an effort to avoid harm. Furthermore, if
the employee unreasonably delayed complaining, and an earlier complaint
could have reduced the harm, then the affirmative defense could operate
to reduce damages.
Proof that the employee unreasonably failed to use any complaint
procedure provided by the employer will normally satisfy the employer's
burden.83 However, it is important
to emphasize that an employee who failed to complain does not carry a
burden of proving the reasonableness of that decision. Rather, the
burden lies with the employer to prove that the employee's failure to
complain was unreasonable.
1. Failure to Complain
A determination as to whether an employee unreasonably failed to
complain or otherwise avoid harm depends on the particular circumstances
and information available to the employee at that time.84
An employee should not necessarily be expected to complain to management
immediately after the first or second incident of relatively minor
harassment. Workplaces need not become battlegrounds where every minor,
unwelcome remark based on race, sex, or another protected category
triggers a complaint and investigation. An employee might reasonably
ignore a small number of incidents, hoping that the harassment will stop
without resort to the complaint process.85
The employee may directly say to the harasser that s/he wants the
misconduct to stop, and then wait to see if that is effective in ending
the harassment before complaining to management. If the harassment
persists, however, then further delay in complaining might be found
unreasonable.
There might be other reasonable explanations for an employee's delay
in complaining or entire failure to utilize the employer's complaint
process. For example, the employee might have had reason to believe
that:86
- using the complaint mechanism entailed a risk of retaliation;
- there were obstacles to complaints; and
- the complaint mechanism was not effective.
To establish the second prong of the affirmative defense, the
employer must prove that the belief or perception underlying the
employee's failure to complain was unreasonable.
a. Risk of Retaliation
An employer cannot establish that an employee unreasonably failed to
use its complaint procedure if that employee reasonably feared
retaliation. Surveys have shown that employees who are subjected to
harassment frequently do not complain to management due to fear of
retaliation.87 To assure employees
that such a fear is unwarranted, the employer must clearly communicate
and enforce a policy that no employee will be retaliated against for
complaining of harassment.
b. Obstacles to Complaints
An employee's failure to use the employer's complaint procedure would
be reasonable if that failure was based on unnecessary obstacles to
complaints. For example, if the process entailed undue expense by the
employee,88 inaccessible points of
contact for making complaints,89
or unnecessarily intimidating or burdensome requirements, failure to
invoke it on such a basis would be reasonable.
An employee's failure to participate in a mandatory mediation or
other alternative dispute resolution process also does not does not
constitute unreasonable failure to avoid harm. While an employee can be
expected to cooperate in the employer's investigation by providing
relevant information, an employee can never be required to waive rights,
either substantive or procedural, as an element of his or her exercise
of reasonable care.90 Nor must an
employee have to try to resolve the matter with the harasser as an
element of exercising due care.
c. Perception That Complaint Process Was Ineffective
An employer cannot establish the second prong of the defense based on
the employee's failure to complain if that failure was based on a
reasonable belief that the process was ineffective. For example, an
employee would have a reasonable basis to believe that the complaint
process is ineffective if the procedure required the employee to
complain initially to the harassing supervisor. Such a reasonable basis
also would be found if he or she was aware of instances in which co-
workers' complaints failed to stop harassment. One way to increase
employees' confidence in the efficacy of the complaint process would be
for the employer to release general information to employees about
corrective and disciplinary measures undertaken to stop harassment.91
2. Other Efforts to Avoid Harm
Generally, an employer can prove the second prong of the affirmative
defense if the employee unreasonably failed to utilize its complaint
process. However, such proof will not establish the defense if the
employee made other efforts to avoid harm.
For example, a prompt complaint by the employee to the
EEOC
or a state fair employment practices agency while the harassment is
ongoing could qualify as such an effort. A union grievance could also
qualify as an effort to avoid harm.92
Similarly, a staffing firm worker who is harassed at the client's
workplace might report the harassment either to the staffing firm or to
the client, reasonably expecting that either would act to correct the
problem.93 Thus the worker's
failure to complain to one of those entities would not bar him or her
from subsequently bringing a claim against it.
With these and any other efforts to avoid harm, the timing of the
complaint could affect liability or damages. If the employee could have
avoided some of the harm by complaining earlier, then damages would be
mitigated accordingly.
VI. Harassment by "Alter Ego" of Employer
A. Standard of Liability
An employer is liable for unlawful harassment whenever the harasser
is of a sufficiently high rank to fall "within that class . . . who may
be treated as the organization's proxy." Faragher, 118 S. Ct. at
2284.94 In such circumstances, the
official's unlawful harassment is imputed automatically to the employer.95
Thus the employer cannot raise the affirmative defense, even if the
harassment did not result in a tangible employment action.
B. Officials Who Qualify as "Alter Egos" or "Proxies"
The Court, in Faragher, cited the following examples of
officials whose harassment could be imputed automatically to the
employer:
- president96
- owner97
- partner98
- corporate officer
Faragher, 118 S. Ct. at 2284.
VII. Conclusion
The Supreme Court's rulings in Ellerth and Faragher
create an incentive for employers to implement and enforce strong
policies prohibiting harassment and effective complaint procedures. The
rulings also create an incentive for employees to alert management about
harassment before it becomes severe and pervasive. If employers and
employees undertake these steps, unlawful harassment can often be
prevented, thereby effectuating an important goal of the
anti-discrimination statutes.
1 See, e.g.,
29 C.F.R. § 1604.11 n. 1 ("The principles involved here continue to
apply to race, color, religion or national origin.");
EEOC
Compliance Manual Section 615.11(a) (BNA 615:0025 ("Title VII law and
agency principles will guide the determination of whether an employer is
liable for age harassment by its supervisors, employees, or
non-employees").
2 See 1980 Guidelines at
29 C.F.R. § 1604.11(f) and Policy Guidance on Current Issues of Sexual
Harassment, Section E, 8 FEP Manual 405:6699 (Mar. 19, 1990), quoted
in Faragher, 118 S. Ct. at 2292.
3 Faragher, 118 S. Ct. at
2292.
4 Oncale v. Sundowner Offshore
Services, Inc., 118 S. Ct. 998, 1002 (1998).
5 Faragher, 118 S.Ct. at
2283. However, when isolated incidents that are not "extremely serious"
come to the attention of management, appropriate corrective action
should still be taken so that they do not escalate. See Section
V(C)(1)(a), below.
6 Oncale, 118 S. Ct. at
1003.
7 Some previous Commission
documents classified harassment as either "quid pro quo" or hostile
environment. However, it is now more useful to distinguish between
harassment that results in a tangible employment action and harassment
that creates a hostile work environment, since that dichotomy determines
whether the employer can raise the affirmative defense to vicarious
liability. Guidance on the definition of "tangible employment action"
appears in section IV(B), below.
8 The guidance in this document
applies to federal sector employers, as well as all other employers
covered by the statutes enforced by the Commission.
9 29 C.F.R. § 1604.11(d).
10 The Commission will rescind
Subsection 1604.11(c) of the 1980 Guidelines on Sexual Harassment, 29
CFR § 1604.11(c). In addition, the following Commission guidance is no
longer in effect: Subsection D of the 1990 Policy Statement on Current
Issues in Sexual Harassment("Employer Liability for Harassment by
Supervisors"),
EEOC Compliance Manual (BNA) N:4050-58 (3/19/90); and
EEOC
Compliance Manual Section 615.3(c) (BNA) 6:15-0007 - 0008.
The remaining portions of the 1980 Guidelines, the 1990 Policy
Statement, and Section 615 of the Compliance Manual remain in effect.
Other Commission guidance on harassment also remains in effect,
including the Enforcement Guidance on Harris v. Forklift Sys., Inc.,
EEOC
Compliance Manual (BNA) N:4071 (3/8/94) and the Policy Guidance on
Employer Liability for Sexual Favoritism,
EEOC
Compliance Manual (BNA) N:5051 (3/19/90).
11 Harassment that is targeted
at an individual because of his or her sex violates Title VII even if it
does not involve sexual comments or conduct. Thus, for example,
frequent, derogatory remarks about women could constitute unlawful
harassment even if the remarks are not sexual in nature. See 1990
Policy Guidance on Current Issues of Sexual Harassment, subsection C(4)
("sex- based harassment - that is, harassment not involving sexual
activity or language - may also give rise to Title VII liability . . .
if it is 'sufficiently patterned or pervasive' and directed at employees
because of their sex").
12 "Protected activity" means
opposition to discrimination or participation in proceedings covered by
the anti-discrimination statutes. Harassment based on protected activity
can constitute unlawful retaliation. See
EEOC
Compliance Manual Section 8 ("Retaliation") (BNA) 614:001 (May 20,
1998).
13 For cases applying Ellerth
and Faragher to harassment on different bases, see Hafford v.
Seidner, 167 F.3d 1074, 1080 (6th Cir. 1999) (religion
and race); Breeding v. Arthur J. Gallagher and Co., 164 F.3d
1151, 1158 (8th Cir. 1999) (age); Allen v. Michigan
Department of Corrections, 165 F.3d 405, 411 (6th Cir.
1999) (race) ; Richmond-Hopes v. City of Cleveland, No. 97-3595,
1998 WL 808222 at *9 (6th Cir. Nov. 16, 1998) (unpublished)
(retaliation); Wright- Simmons v. City of Oklahoma City, 155 F.3d
1264, 1270 (10th Cir. 1998) (race); Gotfryd v. Book
Covers, Inc., No. 97 C 7696, 1999 WL 20925 at *5 (N.D. Ill. Jan. 7,
1999) (national origin). See also Wallin v. Minnesota Department of
Corrections, 153 F.3d 681, 687 (8th Cir. 1998) (assuming
without deciding that
ADA hostile environment claims are modeled after Title VII
claims), cert. denied, 119 S. Ct. 1141 (1999).
14 The majority's analysis in
both Faragher and Ellerth drew upon the liability
standards for harassment on other protected bases. It is therefore clear
that the same standards apply. See Faragher, 118 S. Ct. at 2283
(in determining appropriate standard of liability for sexual harassment
by supervisors, Court "drew upon cases recognizing liability for
discriminatory harassment based on race and national origin");
Ellerth, 118 S. Ct. at 2268 (Court imported concept of "tangible
employment action" in race, age and national origin discrimination cases
for resolution of vicarious liability in sexual harassment cases).
See also cases cited in n.13, above.
15 Ellerth, 118 S. Ct. at
2270; Faragher, 118 S. Ct. at 2293.
16 Numerous statutes contain the
word "supervisor," and some contain definitions of the term. See,
e.g., 12 U.S.C. § 1813(r) (definition of "State bank supervisor" in
legislation regarding Federal Deposit Insurance Corporation); 29 U.S.C.
§ 152(11) (definition of "supervisor" in National Labor Relations Act);
42 U.S.C.. § 8262(2) (definition of "facility energy supervisor" in
Federal Energy Initiative legislation). The definitions vary depending
on the purpose and structure of each statute. The definition of the word
"supervisor" under other statutes does not control, and is not affected
by, the meaning of that term under the employment discrimination
statutes.
17 See 42 U.S.C. 2000e(a)
(Title VII); 29 U.S.C. 630(b) (ADEA);
and 42 U.S.C. §12111(5)(A) (ADA)
(all defining "employer" as including any agent of the employer).
18 Meritor Savings Bank, FSB
v. Vinson, 477 U.S. 57, 72 (1986); Faragher, 118 S. Ct. at
2290 n.3; Ellerth, 118 S. Ct. at 2266.
19 See Faragher, 118 S.
Ct. at 2288 (analysis of vicarious liability "calls not for a mechanical
application of indefinite and malleable factors set forth in the
Restatement . . . but rather an inquiry into the reasons that would
support a conclusion that harassing behavior ought to be held within the
scope of a supervisor's employment . . . ") and at 2290 n.3 (agency
concepts must be adapted to the practical objectives of the
anti-discrimination statutes).
20 Faragher, 118 S. Ct.
at 2290; Ellerth, 118 S. Ct. at 2269.
21 Ellerth, 118 S. Ct. at
2269.
22 Ellerth, 118 S. Ct. at
2269.
23 Faragher, 118 S. Ct.
at 2280. For a more detailed discussion of the harassers' job
responsibilities, see Faragher, 864 F. Supp. 1552, 1563 (S.D.
Fla. 1994).
24 See Grozdanich v. Leisure
Hills Health Center, 25 F. Supp.2d 953, 973 (D. Minn. 1998) ("it is
evident that the Supreme Court views the term 'supervisor' as more
expansive than as merely including those employees whose opinions are
dispositive on hiring, firing, and promotion"; thus, "charge nurse" who
had authority to control plaintiff's daily activities and recommend
discipline qualified as "supervisor" and therefore rendered employer
vicariously liable under Title VII for his harassment of plaintiff,
subject to affirmative defense).
25 See Ellerth, 118 S.
Ct. at 2268 ("If, in the unusual case, it is alleged there is a false
impression that the actor was a supervisor, when he in fact was not, the
victim's mistaken conclusion must be a reasonable one."); Llampallas
v. Mini-Circuit Lab, Inc., 163 F.3d 1236, 1247 (11th Cir.
1998) ("Although the employer may argue that the employee had no actual
authority to take the employment action against the plaintiff, apparent
authority serves just as well to impute liability to the employer for
the employee's action.").
26 Of course, traditional
principles of mitigation of damages apply in these cases, as well as all
other employment discrimination cases. See generally Ford Motor Co.
v. EEOC,
458 U.S. 219 (1982).
27 Ellerth, 118 S. Ct. at
2269; Faragher, 118 S. Ct. 2284-85. See also Durham
Life Insurance Co., v. Evans, 166 F.3d 139, 152 (3rd Cir. 1999) ("A
supervisor can only take a tangible adverse employment action because of
the authority delegated by the employer . . .and thus the employer is
properly charged with the consequences of that delegation.").
28 Ellerth, 118 S.
Ct. at 2268.
29 All listed criteria are set
forth in Ellerth, 118 S. Ct. at 2269.
30 All listed examples are set
forth in Ellerth and/or Faragher. See Ellerth, 118
S. Ct. at 2268 and 2270; Faragher, 118 S. Ct. at 2284, 2291, and
2293.
31 Other forms of formal
discipline would qualify as well, such as suspension. Any disciplinary
action undertaken as part of a program of progressive discipline is
"tangible" because it brings the employee one step closer to discharge.
32 The Commission disagrees with
the Fourth Circuit's conclusion in Reinhold v. Commonwealth of
Virginia, 151 F.3d 172 (4th Cir. 1998), that the
plaintiff was not subjected to a tangible employment action where the
harassing supervisor "dramatically increased her workload," Reinhold,
947 F. Supp. 919, 923 (E.D Va. 1996), denied her the opportunity to
attend a professional conference, required her to monitor and discipline
a co-worker, and generally gave her undesirable assignments. The Fourth
Circuit ruled that the plaintiff had not been subjected to a tangible
employment action because she had not "experienced a change in her
employment status akin to a demotion or a reassignment entailing
significantly different job responsibilities." 151 F.3d at 175. It is
the Commission's view that the Fourth Circuit misconstrued Faragher
and Ellerth. While minor changes in work assignments would not
rise to the level of tangible job harm, the actions of the supervisor in
Reinhold were substantial enough to significantly alter the
plaintiff's employment status.
33 See Durham, 166 F.3d
at 152-53 (assigning insurance salesperson heavy load of inactive
policies, which had a severe negative impact on her earnings, and
depriving her of her private office and secretary, were tangible
employment actions); Bryson v. Chicago State University, 96 F.3d
912, 917 (7th Cir. 1996) ("Depriving someone of the building
blocks for . . . a promotion . . . is just as serious as depriving her
of the job itself.").
34 See Flaherty v. Gas
Research Institute, 31 F.3d 451, 457 (7th Cir. 1994)
(change in reporting relationship requiring plaintiff to report to
former subordinate, while maybe bruising plaintiff's ego, did not affect
his salary, benefits, and level of responsibility and therefore could
not be challenged in
ADEA
claim), cited in Ellerth, 118 S. Ct. at 2269.
35 See Crady v. Liberty Nat.
Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.
1993) ("A materially adverse change might be indicated by a termination
of employment, a demotion evidenced by a decrease in wage or salary, a
less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be
unique to the particular situation."), quoted in Ellerth, 118 S.
Ct. at 2268-69.
36 See Nichols v.
Frank, 42 F.3d 503, 512-13 (9th Cir. 1994) (employer
vicariously liable where its supervisor granted plaintiff's leave
requests based on her submission to sexual conduct), cited in
Faragher, 118 S. Ct. at 2285.
37 See Ellerth, 118 S.
Ct. at 2268 and Faragher, 118 S. Ct. at 2284 (listed examples of
tangible employment actions that included both positive and negative job
decisions: hiring and firing; promotion and failure to
promote).
38 The link could be established
even if the harasser was not the ultimate decision maker. See, e.g.,
Shager v Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990)
(noting that committee rather than the supervisor fired plaintiff, but
employer was still liable because committee functioned as supervisor's
"cat's paw"), cited in Ellerth, 118 S. Ct. at 2269.
39 Llampallas, 163 F.3d
at 1247.
40 Ellerth, 118 S. Ct. at
2270 ("[n]o affirmative defense is available . . . when the supervisor's
harassment culminates in a tangible employment action . . .");
Faragher, 118 S. Ct. at 2293 (same). See also Durham, 166
F.3d at 154 ("When harassment becomes adverse employment action, the
employer loses the affirmative defense, even if it might have been
available before."); Lissau v. Southern Food Services, Inc., 159
F.3d 177, 184 (4th Cir. 1998) (the affirmative defense "is
not available in a hostile work environment case when the supervisor
takes a tangible employment action against the employee as part of the
harassment") (Michael, J., concurring).
41 Ellerth, 118 S. Ct. at
2265. Even if the preceding acts were not severe or pervasive, they
still may be relevant evidence in determining whether the tangible
employment action was discriminatory.
42 See Lissau v.
Southern Food Service, Inc., 159 F.3d at 182 (if plaintiff could not
prove that her discharge resulted from her refusal to submit to her
supervisor's sexual harassment, then the defendant could advance the
affirmative defense); Newton v. Caldwell Laboratories, 156 F.3d
880, 883 (8th Cir. 1998) (plaintiff failed to prove that her
rejection of her supervisor's sexual advances was the reason that her
request for a transfer was denied and that she was discharged; her claim
was therefore categorized as one of hostile environment harassment);
Fierro v. Saks Fifth Avenue, 13 F. Supp.2d 481, 491 (S.D.N.Y. 1998)
(plaintiff claimed that his discharge resulted from national origin
harassment but court found that he was discharged because of
embezzlement; thus, employer could raise affirmative defense as to the
harassment preceding the discharge).
43 See Faragher, 118 S.
Ct. at 2292 ("If the victim could have avoided harm, no liability should
be found against the employer who had taken reasonable care.").
44 See, e.g.,
EEOC
v. SBS Transit, Inc., No. 97-4164, 1998 WL 903833 at *1 (6th
Cir. Dec. 18, 1998) (unpublished) (lower court erred when it reasoned
that employer liability for sexual harassment is negated if the employer
responds adequately and effectively once it has notice of the
supervisor's harassment; that standard conflicts with affirmative
defense which requires proof that employer "took reasonable care to
prevent and correct promptly any sexually harassing behavior and
that the plaintiff employee unreasonably failed to take advantage of
preventative or corrective opportunities provided by the employer").
45 Ellerth, 118 S. Ct. at
2270.
46 See Indest v. Freeman
Decorating, Inc., 168 F.3d 795, 803 (5th Cir. 1999)
("when an employer satisfies the first element of the Supreme Court's
affirmative defense, it will likely forestall its own vicarious
liability for a supervisor's discriminatory conduct by nipping such
behavior in the bud") (Wiener, J., concurring in Indest, 164 F.3d
258 (5th Cir. 1999)). The Commission agrees with Judge
Wiener's concurrence in Indest that the court in that case
dismissed the plaintiff's claims on an erroneous basis. The plaintiff
alleged that her supervisor made five crude sexual comments or gestures
to her during a week-long convention. She reported the incidents to
appropriate management officials who investigated the matter and meted
out appropriate discipline. No further incidents of harassment occurred.
The court noted that it was "difficult to conclude" that the conduct to
which the plaintiff was briefly subjected created an unlawful hostile
environment. Nevertheless, the court went on to consider liability. It
stated that Ellerth and Faragher do not apply where the
plaintiff quickly resorted to the employer's grievance procedure and the
employer took prompt remedial action. In such a case, according to the
court, the employer's quick response exempts it from liability. The
Commission agrees with Judge Wiener that Ellerth and Faragher
do control the analysis in such cases, and that an employee's prompt
complaint to management forecloses the employer from proving the
affirmative defense. However, as Judge Wiener pointed out, an employer's
quick remedial action will often thwart the creation of an unlawful
hostile environment, rendering any consideration of employer liability
unnecessary.
47 See Greene v. Dalton,
164 F.3d 671, 674 (D.C. Cir. 1999) (in order for defendant to avoid all
liability for sexual harassment leading to rape of plaintiff "it must
show not merely that [the plaintiff] inexcusably delayed reporting the
alleged rape . . . but that, as a matter of law, a reasonable person in
[her] place would have come forward early enough to prevent [the]
harassment from becoming 'severe or pervasive'").
48 Ellerth, 118 S. Ct. at
2267.
49 Under this same principle, it
is the Commission's position that an employer is liable for punitive
damages if its supervisor commits unlawful harassment or other
discriminatory conduct with malice or with reckless indifference to the
employee's federally protected rights. (The Supreme Court will determine
the standard for awarding punitive damages in Kolstad v. American
Dental Association,119 S. Ct. 401 (1998) (granting certiorari).) The
test for imposition of punitive damages is the mental state of the
harasser, not of higher-level officials. This approach furthers the
remedial and deterrent objectives of the anti-discrimination statutes,
and is consistent with the vicarious liability standard set forth in
Faragher and Ellerth.
50 Even if higher management
proves that evidence it discovered after-the-fact would have justified
the supervisor's action, such evidence can only limit remedies, not
eliminate liability. McKennon v. Nashville Banner Publishing Co.,
513 U.S. 352, 360-62 (1995).
51 See Faragher, 118 S.
Ct. at 2293, and Ellerth, 118 S. Ct. at 2270 (affirmative defense
operates either to eliminate liability or limit damages).
52 See Faragher, 118 S.
Ct. at 2292 ("if damages could reasonably have been mitigated no award
against a liable employer should reward a plaintiff for what her own
efforts could have avoided").
53 See Section V(C)(3) for a
discussion of preventive and corrective care by small employers.
54 See Hurley v. Atlantic
City Police Dept., No. 96-5634, 96-5633, 96-5661, 96-5738, 1999 WL
150301 (3d Cir. March 18, 1999) ("Ellerth and Faragher do
not, as the defendants seem to assume, focus mechanically on the formal
existence of a sexual harassment policy, allowing an absolute defense to
a hostile work environment claim whenever the employer can point to an
anti- harassment policy of some sort"; defendant failed to prove
affirmative defense where it issued written policies without enforcing
them, painted over offensive graffiti every few months only to see it go
up again in minutes, and failed to investigate sexual harassment as it
investigated and punished other forms of misconduct.).
55 See Dees v. Johnson
Controls World Services, Inc., 168 F.3d 417, 422 (11th
Cir. 1999) (employer can be held liable despite its immediate and
appropriate corrective action in response to harassment complaint if it
had knowledge of the harassment prior to the complaint and took no
corrective action).
56 Ellerth, 118 S.
Ct. at 2270.
57 A union grievance and
arbitration system does not fulfill this obligation. Decision making
under such a system addresses the collective interests of bargaining
unit members, while decision making under an internal harassment
complaint process should focus on the individual complainant's rights
under the employer's anti-harassment policy.
An arbitration, mediation, or other alternative dispute resolution
process also does not fulfill the employer's duty of due care. The
employer cannot discharge its responsibility to investigate complaints
of harassment and undertake corrective measures by providing employees
with a dispute resolution process. For further discussion of the impact
of such procedures on the affirmative defense, see Section V(D)(1)(b),
below.
Finally, a federal agency's formal, internal
EEO complaint
process does not, by itself, fulfill its obligation to exercise
reasonable care. That process only addresses complaints of violations of
the federal EEO
laws, while the Court, in Ellerth, made clear that an employer
should encourage employees "to report harassing conduct before it
becomes severe or pervasive." Ellerth, 118 S. Ct. at 2270.
Furthermore, the EEO
process is designed to assess whether the agency is liable for unlawful
discrimination and does not necessarily fulfill the agency's obligation
to undertake immediate and appropriate corrective action.
58 Although the affirmative
defense does not apply in cases of harassment by co-workers or
non-employees, an employer cannot claim lack of knowledge as a defense
to such harassment if it did not make clear to employees that they can
bring such misconduct to the attention of management and that such
complaints will be addressed. See Perry v. Ethan Allen, 115 F.3d
143, 149 (2d Cir. 1997) ("When harassment is perpetrated by the
plaintiff's coworkers, an employer will be liable if the plaintiff
demonstrates that 'the employer either provided no reasonable avenue for
complaint or knew of the harassment but did nothing about it'"),
cited in Faragher, 118 S. Ct. at 2289. Furthermore, an employer is
liable for harassment by a co-worker or non-employer if management knew
or should have known of the misconduct, unless the employer can show
that it took immediate and appropriate corrective action. 29 C.F.R. §
1604.11(d). Therefore, the employer should have a mechanism for
investigating such allegations and undertaking corrective action, where
appropriate.
59 Surveys have shown that a
common reason for failure to report harassment to management is fear of
retaliation. See, e.g., Louise F. Fitzgerald & Suzanne Swan, "Why
Didn't She Just Report Him? The Psychological and Legal Implications of
Women's Responses to Sexual Harassment," 51 Journal of Social Issues
117, 121-22 (1995) (citing studies). Surveys also have shown that a
significant proportion of harassment victims are worse off after
complaining. Id. at 123-24; see also Patricia A. Frazier,
"Overview of Sexual Harassment From the Behavioral Science Perspective,"
paper presented at the American Bar Association National Institute on
Sexual Harassment at B-17 (1998) (reviewing studies that show frequency
of retaliation after victims confront their harasser or filed formal
complaints).
60 See Wilson v. Tulsa Junior
College, 164 F.3d 534, 541 (10th Cir. 1998) (complaint
process deficient where it permitted employees to bypass the harassing
supervisor by complaining to director of personnel services, but the
director was inaccessible due to hours of duty and location in separate
facility).
61 Faragher, 118 S. Ct.
at 2293 (in holding as matter of law that City did not exercise
reasonable care to prevent the supervisors' harassment, Court took note
of fact that City's policy "did not include any assurance that the
harassing supervisors could be bypassed in registering complaints");
Meritor Savings Bank, FSB v. Vinson, 471 U.S. 57, 72 (1986).
62 See Wilson, 164 F.3d
at 541 (complaint procedure deficient because it only required
supervisors to report "formal" as opposed to "informal" complaints of
harassment); Varner v. National Super Markets Inc., 94 F.3d 1209,
1213 (8th Cir. 1996), cert denied, 519 U.S. 1110
(1997) (complaint procedure is not effective if it does not require
supervisor with knowledge of harassment to report the information to
those in position to take appropriate action).
63 It is particularly important
for federal agencies to explain the statute of limitations for filing
formal EEO
complaints, because the regulatory deadline is only 45 days and
employees may otherwise assume they can wait whatever length of time it
takes for management to complete its internal investigation.
64 If an employer actively
misleads an employee into missing the deadline for filing a charge by
dragging out its investigation and assuring the employee that the
harassment will be rectified, then the employer would be "equitably
estopped" from challenging the delay. See Currier v. Radio Free
Europe/Radio Liberty, Inc., 159 F.3d 1363, 1368 (D.C. Cir. 1998)
("an employer's affirmatively misleading statements that a grievance
will be resolved in the employee's favor can establish an equitable
estoppel"); Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d
1518, 1531 (11th Cir. 1992) (tolling is appropriate where
plaintiff was led by defendant to believe that the discriminatory
treatment would be rectified); Miller v. Beneficial Management Corp.,
977 F.2d 834, 845 (3d Cir. 1992) (equitable tolling applies where
employer's own acts or omission has lulled the plaintiff into foregoing
prompt attempt to vindicate his rights).
65 The sharing of records about
a harassment complaint with prospective employers of the complainant
could constitute unlawful retaliation. See Compliance Manual
Section 8 ("Retaliation), subsection II D (2), (BNA) 614:0005 (5/20/98).
66 One court has suggested that
it may be permissible to honor such a request, but that when the
harassment is severe, an employer cannot just stand by, even if
requested to do so. Torres v. Pisano, 116 F.3d 625 (2d
Cir.), cert. denied, 118 S. Ct. 563(1997).
67 Employers may hesitate to set
up such a phone line due to concern that it may create a duty to
investigate anonymous complaints, even if based on mere rumor. To avoid
any confusion as to whether an anonymous complaint through such a phone
line triggers an investigation, the employer should make clear that the
person who takes the calls is not a management official and can only
answer questions and provide information. An investigation will proceed
only if a complaint is made through the internal complaint process or if
management otherwise learns about alleged harassment.
68 See, e.g., Van Zant
v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996)
(employer's response prompt where it began investigation on the day that
complaint was made, conducted interviews within two days, and fired the
harasser within ten days); Steiner v. Showboat Operating Co., 25
F.3d 1459, 1464 (9th Cir. 1994) (employer's response to complaints
inadequate despite eventual discharge of harasser where it did not
seriously investigate or strongly reprimand supervisor until after
plaintiff filed charge with state FEP agency), cert. denied, 513
U.S. 1082 (1995); Saxton v. AT&T, 10 F.3d 526, 535 (7th
Cir 1993) (investigation prompt where it was begun one day after
complaint and a detailed report was completed two weeks later); Nash
v. Electrospace Systems, Inc. 9 F.3d 401, 404 (5th Cir.
1993) (prompt investigation completed within one week); Juarez v.
Ameritech Mobile Communications, Inc., 957 F.2d 317, 319 (7th
Cir. 1992) (adequate investigation completed within four days).
69 Management may be reluctant
to release information about specific disciplinary measures that it
undertakes against the harasser, due to concerns about potential
defamation claims by the harasser. However, many courts have recognized
that limited disclosures of such information are privileged. For cases
addressing defenses to defamation claims arising out of alleged
harassment, see Duffy v. Leading Edge Products, 44 F.3d 308, 311
(5th Cir. 1995) (qualified privilege applied to statements
accusing plaintiff of harassment); Garziano v. E.I. DuPont de
Nemours & Co., 818 F.2d 380 (5th Cir. 1987) (qualified
privilege protects employer's statements in bulletin to employees
concerning dismissal of alleged harasser); Stockley v. AT&T, 687
F. Supp. 764 (F. Supp. 764 (E.D.N.Y. 1988) (statements made in course of
investigation into sexual harassment charges protected by qualified
privilege).
70 Mockler v Multnomah County,
140 F.3d 808, 813 (9th Cir. 1998).
71 In some cases, accused
harassers who were subjected to discipline and subsequently exonerated
have claimed that the disciplinary action was discriminatory. No
discrimination will be found if the employer had a good faith belief
that such action was warranted and there is no evidence that it
undertook less punitive measures against similarly situated employees
outside his or her protected class who were accused of harassment. In
such circumstances, the Commission will not find pretext based solely on
an after-the-fact conclusion that the disciplinary action was
inappropriate. See Waggoner v. City of Garland Tex., 987 F.2d
1160, 1165 (5th Cir. 1993) (where accused harasser claims
that disciplinary action was discriminatory, "[t]he real issue is
whether the employer reasonably believed the employee's allegation [of
harassment] and acted on it in good faith, or to the contrary, the
employer did not actually believe the co-employee's allegation but
instead used it as a pretext for an otherwise discriminatory
dismissal").
72 See Steiner v. Showboat
Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994)
(employer remedial action for sexual harassment by supervisor inadequate
where it twice changed plaintiff's shift to get her away from supervisor
rather than change his shift or work area), cert. denied, 513
U.S. 1082 (1995).
73 See Guess v.
Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990)
("a remedial measure that makes the victim of sexual harassment worse
off is ineffective per se").
74 An oral warning or reprimand
would be appropriate only if the misconduct was isolated and minor. If
an employer relies on oral warnings or reprimands to correct harassment,
it will have difficulty proving that it exercised reasonable care to
prevent and correct such misconduct.
75 See Varner, 94 F.3d at
1213 (complaint procedure is not effective if it does not require
supervisor with knowledge of harassment to report the information to
those in position to take appropriate action), cert denied, 117
S. Ct. 946 (1997); accord Wilson v. Tulsa Junior College,
164 F.3d at 541.
76 See Wilson, 164 F.3d
at 541 (complaint procedure deficient because it only required
supervisors to report "formal" as opposed to "informal" complaints of
harassment).
77 See, e.g., Splunge v.
Shoney's, Inc., 97 F.3d 488, 490 (11th Cir. 1996) (where
harassment of plaintiffs was so pervasive that higher management could
be deemed to have constructive knowledge of it, employer was obligated
to undertake corrective action even though plaintiffs did not register
complaints); Fall v. Indiana Univ. Bd. of Trustees, 12 F. Supp.2d
870, 882 (N.D. Ind. 1998) (employer has constructive knowledge of
harassment by supervisors where it "was so broad in scope and so
permeated the workplace that it must have come to the attention of
someone authorized to do something about it").
78 In Faragher, the City
lost the opportunity to establish the affirmative defense in part
because "its officials made no attempt to keep track of the conduct of
supervisors." Faragher, 118 S. Ct. at 2293.
79 See subsections
V(C)(1)(e)(ii) and V(C)(2), above.
80 If the owner of the business
commits unlawful harassment, then the business will automatically be
found liable under the alter ego standard and no affirmative defense can
be raised. See Section VI, below.
81 Faragher, 118 S. Ct.
at 2293.
82 Faragher, 118 S. Ct.
at 2292 ("If the victim could have avoided harm, no liability should be
found against the employer who had taken reasonable care, and if damages
could reasonably have been mitigated no award against a liable employer
should reward a plaintiff for what her own efforts could have
avoided.").
83 Ellerth, 118 S. Ct. at
2270; Faragher, 118 S. Ct. at 2293. See also Scrivner v.
Socorro Independent School District, 169 F.3d 969, 971 (5th
Cir., 1999) (employer established second prong of defense where
harassment began during summer, plaintiff misled investigators inquiring
into anonymous complaint by denying that harassment occurred, and
plaintiff did not complain about the harassment until the following
March).
84 The employee is not required
to have chosen "the course that events later show to have been the
best." Restatement (Second) of Torts § 918, comment c.
85 See Corcoran v.
Shoney's Colonial, Inc., 24 F. Supp.2d 601, 606 (W.D. Va. 1998)
("Though unwanted sexual remarks have no place in the work environment,
it is far from uncommon for those subjected to such remarks to ignore
them when they are first made.").
86 See Faragher, 118 S.
Ct. at 2292 (defense established if plaintiff unreasonably failed to
avail herself of "a proven, effective mechanism for reporting and
resolving complaints of sexual harassment, available to the employee
without undue risk or expense"). See also Restatement (Second) of
Torts § 918, comment c (tort victim "is not barred from full recovery by
the fact that it would have been reasonable for him to make expenditures
or subject himself to pain or risk; it is only when he is unreasonable
in refusing or failing to take action to prevent further loss that his
damages are curtailed").
87 See n.59, above.
88 See Faragher, 118 S.
Ct. at 2292 (employee should not recover for harm that could have been
avoided by utilizing a proven, effective complaint process that was
available "without undue risk or expense").
89 See Wilson, 164 F.3d
at 541 (complaint process deficient where official who could take
complaint was inaccessible due to hours of duty and location in separate
facility).
90 See Policy Statement
on Mandatory Binding Arbitration of Employment Discrimination Disputes
as a Condition of Employment,
EEOC
Compliance Manual (BNA) N:3101 (7/10/97).
91 For a discussion of
defamation claims and the application of a qualified privilege to an
employer's statements about instances of harassment, see n.69,
above.
92 See Watts v. Kroger
Company, 170 F.3d 505, 510 (5th Cir., 1999) (plaintiff
made effort "to avoid harm otherwise" where she filed a union grievance
and did not utilize the employer's harassment complaint process; both
the employer and union procedures were corrective mechanisms designed to
avoid harm).
93 Both the staffing firm and
the client may be legally responsible, under the anti- discrimination
statutes, for undertaking corrective action. See Enforcement
Guidance: Application of
EEO Laws to Contingent Workers Placed by Temporary Employment
Agencies and Other Staffing Firms,
EEOC
Compliance Manual (BNA) N:3317 (12/3/97).
94 See also Ellerth, 118
S. Ct. at 2267 (under agency principles an employer is indirectly liable
"where the agent's high rank in the company makes him or her the
employer's alter ego"); Harrison v. Eddy Potash, Inc., 158 F.3d
1371, 1376 (10th Cir. 1998) ("the Supreme Court in Burlington
acknowledged an employer can be held vicariously liable under Title VII
if the harassing employee's 'high rank in the company makes him or her
the employer's alter ego'").
95 Faragher, 118 S. Ct.
at 2284.
96 The Court noted that the
standards for employer liability were not at issue in the case of
Harris v. Forklift Systems, 510 U.S. 17 (1993), because the harasser
was the president of the company. Faragher, 118 S. Ct. at 2284.
97 An individual who has an
ownership interest in an organization, receives compensation based on
its profits, and participates in managing the organization would qualify
as an "owner" or "partner." Serapion v. Martinez, 119 F.3d 982,
990 (1st Cir. 1997), cert. denied, 118 S. Ct. 690
(1998).
98 Id.
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