Legal Affairs

Jeff Feuquay, Associate Editor

What Joe, Beth, Kim, Paula & Anita Tell Us About Sex in the Workplace

During its 1997-98 docket, the U.S. Supreme Court has already decided seven employment law cases, and still has five others pending -- cases that are likely to have a dramatic impact on the way we do business. Several of those cases deal with sex in the workplace, and either already have or soon will better define what is illegal and what is simply boorish.

On March 4, 1998, the Court issued its unanimous decision in Oncale v. Sundowner Offshore Services Inc., No. 96-568, 1998 WL 88039 (U.S. March 4, 1998), holding that same-sex sexual harassment is actionable under Title VII of the Civil Rights Act of 1964. Joseph Oncale had been physically assaulted in a sexual manner before the rest of the oil rig crew in the Gulf of Mexico, even threatened with rape. Management did nothing in response to his pleas.

The case is important not just because it resolved a long-standing split among the federal circuit courts over the issue of same-sex harassment, but also because it clarifies the general principles of workplace sexual harassment. Oncale tells us that workplace androgyny is neither required nor expected. We are allowed to bring our primary, secondary and tertiary (?) sex characteristics with us to work; we just can't use them for show and tell. Specifically, the opinion draws on the foundational principle under Title VII that it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex."

The opinion discusses the hostile work environment standard with which we are familiar, then proceeds to use a brief 3-step analysis to conclude that same-sex harassment is prohibited. First, the Court noted that discrimination "because of sex" covers men as well as women. Second, the Court drew on its 1977 race discrimination decision in Castaneda v. Partida, 430 .S. 482, 499 (1977), in concluding that there is no conclusive presumption that people will not discriminate against members of their own group, e.g., Hispanic person v. Hispanic person. Finally, the justices referred to Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987), to emphasize that the Court did not consider the gender of the supervisor important when a male accused his male supervisor of promoting a co-worker because she was female.

Aware of the potential for a dramatic increase in the number of lawsuits, the Court spent considerable time addressing the limits of prohibited behavior, attempting to, in its words, "ensure that courts and juries do not mistake ordinary socializing in the workplace -- such as male-on-male horseplay or intersexual flirtation -- for discriminatory 'conditions of employment.' " The Court explained that Title VII was not intended to address "genuine but innocuous differences in the way men and women routinely interact with members of the same sex and of the opposite sex." It said:

Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at "discriminat[ion] . . . because of . . . sex." We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.

A claim of hostile environment sexual harassment must be measured by the realities of the workplace environment. That said, how we personnel professionals should advise our organizations has not become appreciably more clear.

A second case on the Court's docket, Faragher v. Boca Raton, has potentially much greater impact than Oncale. The Court will determine the standard of employer liability under Title VII when a supervisor's sexual harassment creates a hostile work environment, i.e., into whose pocket can a plaintiff reach for payment of damages?

Beth Faragher, now a public defender, worked as a lifeguard for the city of Boca Raton, Florida, for five years, during which time she and at least seven other female lifeguards were subjected to uninvited and offensive touching, comments and gestures by two male supervisors. Fearing retaliation, Faragher did not report the conduct to management while she was employed or when she resigned. She did, however, tell another supervisor, as a friend. That supervisor advised Faragher and another to "stick it out" because the city didn't care. The supervisor may have been right -- while the city had a sexual harassment policy, the victims had never been informed of it. Moreover, even had they known of the policy, it had no reporting mechanism for victims.

A letter from a former lifeguard alerted the city to the problem in 1990. In response, the city docked the two supervisors' vacation time. Apparently believing that punishment inadequate, Ms. Faragher sued in 1992. The trial court found the two men liable and awarded $45,000 in damages; it also found the city liable under Title VII and awarded one dollar in damages. On appeal, the 11th Circuit reversed the city's liability. The appeals court held that the two supervisors were not acting as the city's agents because the harassment was outside the scope of their duties; the city did not have knowledge of the harassment because it had been reported only to a friend to the women, albeit an intermediate supervisor; and the harassment was not sufficiently pervasive that the city should have known about it.

We can hope that the Supreme Court will apply the well-established principles of agency to Faragher and bring order to the inter-circuit chaos. The question to be answered is, "When is the organization itself responsible for the sexual harassment misdeeds of its employees." And, is the standard different between quid pro quo threats and hostile work environment cases? We shall soon know.

While Paula Jones' claims are not under Title VII, but under 42 U.S.C. § 1983, another case before the U.S. Supreme Court appears to have potential implications for the President. In Burlington Industries v. Ellerth, No. 97-569, the justices are asked whether a claim of quid pro quo sexual harassment is actionable under Title VII when the plaintiff employee has neither submitted to sexual demands nor suffered resulting tangible economic losses -- such as denial of a promotion or loss of benefits. You may recall that Ms. Jones has alleged no clear job consequences stemming from the President's alleged act of harassment. It is because of that lack of job consequences that Professor Anita Hill argues that Paula Jones has a poor case. (Hill also has joined Gloria Steinem in saying Clinton's alleged fondling of Kathleen Willey, while improper and crude, did not constitute sexual harassment.) I recommend we await a final ruling in Ellerth from Justice Thomas and his colleagues.

Ms. Kimberly Ellerth received a promotion, quit her job and sued. She alleged a senior manager in her department engaged in offensive touching and comments and told her that success depended upon her submitting to his advances. This quid pro quo harassment and hostile work environment continued for about a year.

The trial court granted judgment for the company, because there was no evidence that job benefits were lost because Ellerth rejected the manager's advances and, therefore, no cognizable quid pro quo claim. On appeal, the 7^th Circuit reversed, saying that liability "for quid pro quo harassment is strict even if the supervisor's threat does not result in a company act."

The fundamental argument in this case appears to be whether (1) an unfulfilled quid pro quo threat should be treated simply as evidence of a hostile environment and require some negligence on the part of the organization for liability to accrue; or (2) an organization should be liable for quid pro quo threats alone, absent any showing of economic harm, i.e., strictly liable. If the Court determines the standard for liability is different depending on whether the harassment is quid pro quo or hostile environment, the next battleground will be in our trying to develop clearer distinctions between the two. Again, though, hopefully the Court will also address that issue.

See you in court.

Jeff may be reached at P.O. Box 706, Perry, OK 73077-0706; Phone: (580) 336-4908; Fax (580) 336-5366; Net: jeff@feuquay.com. If there is a topic that you would like to see addressed in this column please let him know.