Sexual-harassment liability in 1998: Good news or bad news for employers and employes?

Cornell Hotel and Restaurant Administration Quarterly

Volumn 39, Issue 5, 1998, Pages 14-21

  Sherwyn, David ^a   Tracey, J Bruce ^a  

^a NONE

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EID: 0032187238     PISSN: 00108804     EISSN: None     Source Type: Journal    
DOI: 10.1177/001088049803900506     Document Type: Article

References (31)

1. 1 Burlington Industries v. Ellerth, 118 S.Ct. 2257 (1998).
2. 2 Faragher v. Boca Raton, 118 S.Ct. 2275 (1998).
3. 3 Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998).
4. 4 42 U.S.C. 2000(e). (For the layperson, an in-depth article on the development of sexual-harassment case law was published earlier this year. See: Jeffrey Toobin, "The Trouble with Sex - Why the Law of Sexual Harassment Has Never Worked," New Yorker, February 9, 1998, pp. 48-55. - Ed.)
5. 5 Meritor Savings Bank v. Vinson, 106 S. Ct. 2399 (1986) or 477 U.S. 57 (1986).
6. 6 The expression "severe and pervasive" is unclear and was not clarified by 1998's court decisions. In a concurrence to Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993) and U.S. Lexis 7155, Justice Scalia explained that the term "severe and pervasive" does not provide much guidance, but that neither he nor the court could think of anything better.
7. 7 Meritor v. Vinson, at 66267, and Ellison v. Brady, 924 F.2d 872, 875-876 (9th Cir., 1998).
8. 8 See, for example: Ellerth, at p. 4; Davis v. Sioux City, 115 F.3d 1365, 1367 (8th Cir. 1997); Nichols v. Frank, 42 F.3d 503, 513-514 (9th Cir. 1994); Bouton v. BMW of North America, Inc., 29 F.3d 103, 106-107 (3rd Cir. 1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1127 (10th Cir. 1993); Kauffman v. Allied Signal, Inc., 970 F.2d 178, 185-186 (6th Cir.), cert. denied, 506 U.S. 1041, 121 L. Ed. 2d 701, 113 S. Ct. 831 (1992); and Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir. 1989).
9. 9 Faragher, at 8.
10. 10 Ellerth, at 7.
11. 11 See: Faragher, at 5, citing Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983), which upheld employer liability because the "employer's supervisory personnel manifested unmistakable acquiescence in or approval of the harassment"; EEOC v. Hacienda Hotel, 881 F.2d 1504, 1516 (9th Cir. 1989), which found the employer liable because its hotel manager did not respond to complaints about supervisors' harassment; and Hall v. Gus Construction Co., 842 F.2d 1010, 1016 (8th Cir. 1988), which held the employer liable for harassment by co-workers because the supervisor knew of the harassment but did nothing.
12. 12 See: Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1351-1352 (4th Cir. 1995), which held the employer vicariously liable in part based on finding that the supervisor's rape of an employee was not outside the scope of his employment because he used his position and power to facilitate the criminal act; and Kauffman v. Allied Signal, Inc., 184, which held that a supervisor's harassment was within the scope of his employment.
13. 13 See: Faragher, at 6, citing Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559, 564 (8th Cir. 1992), which found the employer-company liable where harassment was perpetrated by its owner; and Torres v. Pisano, 116 F.3d 625, 634-635, and n. 11 (2nd Cir. 1997), which noted that a supervisor may hold a sufficiently high position "in the management hierarchy of the company for his actions to be imputed automatically to the employer."
14. 14 Blankenship v. Parke Care Centers, 123 F.3d 868 (6th Cir. Ohio 1997), cert. denied 118 S. Ct. 1039 (1998).
15. 15 See: Martin v. Cavalier Hotel Corp.; Kauffman v. Allied Signal, Inc.; Burns v. McGregor Electronic Industries, Inc.; and Torres v. Pisano.
16. 16 Ellerth, at 10.
17. 17 Ibid. The affirmative defense, however, is available when the supervisor's harassment culminates in a tangible employment action (i.e., a quid pro quo case).
18. 18 See: "Employment Alert," July 1998 edition, published by the Chicago law firm of Altheimer and Gray. For information, call or e-mail David Ritten at 312-715-4661, «rittend@altheimer.com».
19. 19 A policy that requires employees to report incidents to their immediate supervisor will not be considered effective when the supervisor is the harasser. Large companies may consider alternative reporting strategies, such as establishing a sexual-harassment hotline. In any event, the policy should include a procedure that allows the alleged victim to bypass the harasser if the harasser normally has a role in the company's policy-enactment process.
20. 20 Some firms require that employees sign an acknowledgment that they have read and understand the company policy.
21. 21 Garcia v. Elf Atochem North America, 28 F.3d 446, 451-452 (5th Cir. 1994).
22. 22 Oncale v. Sundowner Offshore Services, Inc., 83 F.3d 118 (5th Cir. 1996).
23. 23 Media reaction to the Oncale case was clear from the headlines: "High Court Widens Workplace Claims in Harassment," New York Times, March 5, 1998; "Ruling Puts Workplace Behavior Under a Harsher Spotlight," USA Today, March 5, 1998; "Harassment, Not Gender; an Important Victory for Civil Rights," Bergen Record Headline, March 8, 1998; and "Justices Broaden Bias Law, Add Same-Sex Harassment," Columbus Dispatch, March 5, 1998. Civil-rights advocates found favor with the court's decision as well: Steven R. Shapiro, ACLU legal director, "This decision is a victory for all Americans, gay or straight, male or female," Detroit News, March 25, 1998; and Matt Coles, gay-rights litigant for the ACLU's gay-rights project, "[the court's message is] male or female, gay or straight, nobody should have to face sexual harassment when they go to work in the morning," New York Times, March 5, 1998.
24. 24 Doe v. City of Belleville, 119 F.3d 563 (7th Cir. 1997).
25. 25 The terms "sex" and "gender" are used interchangeably.
26. 26 In Kranz v. Port Authority, 55 FEP Cases 1315 (S.D.N.Y. 1991), an employee alleged harassment against a supervisor who swore at the employee, made negative racial remarks, and opened the employee's locked desk. The court found the harassment was not unlawful because the supervisor treated all of his employees in a similar manner.
27. 27 See: Cline v. G.E. Auto Lease. Not all courts recognize gender harassment, however. In Isaacson v. Keck, Mahin, & Cate, 61 FEP Cases 1145 (N.D. Ill. 1993), the court held that a woman could not make out a "harassment" charge if she failed to allege any conduct of a sexual nature. To us, this ruling is inconsistent with the fact that employees can successfully allege harassment based on other personal and individual characteristics such as race, religion, national origin, age, or disability.
28. 28 Doe and Doe v. City of Belleville, 1997 U.S. 17940, citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3rd Cir. 1990).
29. 29 Oncale, at 1003
30. 30 Ibid.
31. 31 Johnson v. Hondo, Inc., 125 F.3d 408 (7th Cir. 1997).