Maneuvering through the labyrinth: The employers' paradox in responding to hostile environment sexual harassment - A proposed way out

Fordham Law Review

Volumn 67, Issue 4, 1999, Pages 1517-1593

  Franklin, Estelle D ^a  

^a NONE

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EID: 0346838144     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (354)

1. This scenario is derived from Ellison v. Brady, 924 F.2d 872, 873-75 (9th Cir. 1991), a case best known for holding that the existence of harassment should be determined from the vantage of a "reasonable woman." Id. at 884; see infra Part II. The notes and letters did not directly threaten the victim, rather, they contained frightening, obsessive language, such as "I cried over you last night and I'm totally drained," and "I have enjoyed you so much over these past few months. Watching you. Experiencing you from O [sic] so far away." Ellison, 924 F.2d at 874.
2. There is really no set definition of sexual harassment. The concept of sexual harassment has been evolving since the mid-1970s. Catharine A. MacKinnon, in her seminal work, Sexual Harassment of Working Women: A Case of Sex Discrimination (1979), defined sexual harassment as "the unwanted imposition of sexual requirements in the context of a relationship of unequal power." Id. at 1. It has also been described as "unsolicited, nonreciprocal male behavior that asserts a woman's sex role over her function as a worker." Lin Farley, Sexual Shakedown: The Sexual Harassment of Women on the Job 14-15 (1978). More recently, it was broadly defined as "abusive treatment of an employee, by the employer or by a person or persons under the employer's control, which would not occur but for the victim's sex." 3 Employment Discrimination § 46.01.[1], at 44-46 (Lex K. Larson ed., 1998). The quest for a clear legal definition is also ongoing. While courts almost all uniformly cite the same elements, there is very little agreement on the meaning behind those elements. Indeed, the numerous splits in the circuit courts, and the need for more clarity may well be the driving force behind the Supreme Court's decision to have granted certiorari in a record four sexual harassment cases in the 1997-1998 term. For a detailed discussion of the legal requirements for a sexual harassment cause of action, see infra Part II.
3. There is really no set definition of sexual harassment. The concept of sexual harassment has been evolving since the mid-1970s. Catharine A. MacKinnon, in her seminal work, Sexual Harassment of Working Women: A Case of Sex Discrimination (1979), defined sexual harassment as "the unwanted imposition of sexual requirements in the context of a relationship of unequal power." Id. at 1. It has also been described as "unsolicited, nonreciprocal male behavior that asserts a woman's sex role over her function as a worker." Lin Farley, Sexual Shakedown: The Sexual Harassment of Women on the Job 14-15 (1978). More recently, it was broadly defined as "abusive treatment of an employee, by the employer or by a person or persons under the employer's control, which would not occur but for the victim's sex." 3 Employment Discrimination § 46.01.[1], at 44-46 (Lex K. Larson ed., 1998). The quest for a clear legal definition is also ongoing. While courts almost all uniformly cite the same elements, there is very little agreement on the meaning behind those elements. Indeed, the numerous splits in the circuit courts, and the need for more clarity may well be the driving force behind the Supreme Court's decision to have granted certiorari in a record four sexual harassment cases in the 1997-1998 term. For a detailed discussion of the legal requirements for a sexual harassment cause of action, see infra Part II.
4. There is really no set definition of sexual harassment. The concept of sexual harassment has been evolving since the mid-1970s. Catharine A. MacKinnon, in her seminal work, Sexual Harassment of Working Women: A Case of Sex Discrimination (1979), defined sexual harassment as "the unwanted imposition of sexual requirements in the context of a relationship of unequal power." Id. at 1. It has also been described as "unsolicited, nonreciprocal male behavior that asserts a woman's sex role over her function as a worker." Lin Farley, Sexual Shakedown: The Sexual Harassment of Women on the Job 14-15 (1978). More recently, it was broadly defined as "abusive treatment of an employee, by the employer or by a person or persons under the employer's control, which would not occur but for the victim's sex." 3 Employment Discrimination § 46.01.[1], at 44-46 (Lex K. Larson ed., 1998). The quest for a clear legal definition is also ongoing. While courts almost all uniformly cite the same elements, there is very little agreement on the meaning behind those elements. Indeed, the numerous splits in the circuit courts, and the need for more clarity may well be the driving force behind the Supreme Court's decision to have granted certiorari in a record four sexual harassment cases in the 1997-1998 term. For a detailed discussion of the legal requirements for a sexual harassment cause of action, see infra Part II.
5. Pub. L. No. 88-352, tit. VII, 78 Stat. 241, 253-66 (1964) (codified as amended principally at 42 U.S.C. §§ 2000e-1-2000e-17 (1994)). Title VII, which prohibits, among other things, sex discrimination in employment, does not specifically mention sexual harassment. The Supreme Court, however, recognized sexual harassment as a cause of action under Title VII in the seminal case of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
6. Recognition of sexual harassment can be a formidable task because of the ambiguous nature of the term and a legal standard that relies on a case-by-case analysis to determine its existence. See infra Part II.
7. The 1998 Supreme Court cases of Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257, 2270 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2293 (1998), both make clear that corrective action on the part of an employer is implicated when the harasser is a supervisory employee (where the absence of corrective activity will render the employer liable under a theory of vicarious liability), or when the harasser is a co-worker of the victim (which will render the employer liable under a negligence theory). See infra Part III.A. (discussing employer liability).
8. As used in this Article, the phrase "angry man" is a variation of the phrase "angry white man," which has been used to describe a conservative backlash movement against certain aspects of anti-discrimination laws, particularly affirmative action. See David Gates, White Male Paranoia, Newsweek, Mar. 29, 1993, at 48. I use the term "angry male" to describe a similar backlash movement by males accused of sexual harassment.
9. Title VII, of course, protects men from unwanted sexual harassment as well as women. Harassment cases brought by men have been successfully prosecuted in the courts and have led to substantial verdicts. See, e.g., John L. Mitchell, Man Gets $1-Million Award in Sexual Harassment Case, L.A. Times, May 20, 1993, at A1 (describing case in which a male plaintiff alleging sexual harassment by his female supervisor obtained a $1 million verdict). The frequency of such harassment, however, is significantly lower in comparison to harassment of women by men. The Equal Employment Opportunity Commission (EEOC) reports that about 10% of sexual harassment complaints are claims by men. See U.S. Equal Employment Opportunity Commission, Sexual Harassment Charges EEOC & FEPAs Combined: FY 1992-FY 1998 (last modified Jan. 14, 1999) 〈http://www.eeoc.gov/stats/harass.html〉. In addition, the Merit Systems Protection Board ("MSPB") found that harassment of women occurred more than twice as frequently as harassment of men. See Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges 13 (1994) (noting that 44% of women reported being harassed within the two-year period preceding the report, while only 19% of men reported such harassment). This finding is consistent with an earlier MSPB survey concerning sexual harassment: 42% of women reported harassment in 1980, compared to only 15% of men for the same time period. See Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Is It a Problem? 36 (1981). Indeed, one need only peruse the captions of sexual harassment cases to confirm that the vast majority of such actions are brought by women. Thus, I have chosen to follow the common path and speak of the alleged harasser as a male and the putative victim as a female.
10. Title VII, of course, protects men from unwanted sexual harassment as well as women. Harassment cases brought by men have been successfully prosecuted in the courts and have led to substantial verdicts. See, e.g., John L. Mitchell, Man Gets $1- Million Award in Sexual Harassment Case, L.A. Times, May 20, 1993, at A1 (describing case in which a male plaintiff alleging sexual harassment by his female supervisor obtained a $1 million verdict). The frequency of such harassment, however, is significantly lower in comparison to harassment of women by men. The Equal Employment Opportunity Commission (EEOC) reports that about 10% of sexual harassment complaints are claims by men. See U.S. Equal Employment Opportunity Commission, Sexual Harassment Charges EEOC & FEPAs Combined: FY 1992-FY 1998 (last modified Jan. 14, 1999) 〈http://www.eeoc.gov/stats/harass.html〉. In addition, the Merit Systems Protection Board ("MSPB") found that harassment of women occurred more than twice as frequently as harassment of men. See Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges 13 (1994) (noting that 44% of women reported being harassed within the two-year period preceding the report, while only 19% of men reported such harassment). This finding is consistent with an earlier MSPB survey concerning sexual harassment: 42% of women reported harassment in 1980, compared to only 15% of men for the same time period. See Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Is It a Problem? 36 (1981). Indeed, one need only peruse the captions of sexual harassment cases to confirm that the vast majority of such actions are brought by women. Thus, I have chosen to follow the common path and speak of the alleged harasser as a male and the putative victim as a female.
11. Title VII, of course, protects men from unwanted sexual harassment as well as women. Harassment cases brought by men have been successfully prosecuted in the courts and have led to substantial verdicts. See, e.g., John L. Mitchell, Man Gets $1- Million Award in Sexual Harassment Case, L.A. Times, May 20, 1993, at A1 (describing case in which a male plaintiff alleging sexual harassment by his female supervisor obtained a $1 million verdict). The frequency of such harassment, however, is significantly lower in comparison to harassment of women by men. The Equal Employment Opportunity Commission (EEOC) reports that about 10% of sexual harassment complaints are claims by men. See U.S. Equal Employment Opportunity Commission, Sexual Harassment Charges EEOC & FEPAs Combined: FY 1992-FY 1998 (last modified Jan. 14, 1999) 〈http://www.eeoc.gov/stats/harass.html〉. In addition, the Merit Systems Protection Board ("MSPB") found that harassment of women occurred more than twice as frequently as harassment of men. See Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges 13 (1994) (noting that 44% of women reported being harassed within the two-year period preceding the report, while only 19% of men reported such harassment). This finding is consistent with an earlier MSPB survey concerning sexual harassment: 42% of women reported harassment in 1980, compared to only 15% of men for the same time period. See Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Is It a Problem? 36 (1981). Indeed, one need only peruse the captions of sexual harassment cases to confirm that the vast majority of such actions are brought by women. Thus, I have chosen to follow the common path and speak of the alleged harasser as a male and the putative victim as a female.
12. Title VII, of course, protects men from unwanted sexual harassment as well as women. Harassment cases brought by men have been successfully prosecuted in the courts and have led to substantial verdicts. See, e.g., John L. Mitchell, Man Gets $1- Million Award in Sexual Harassment Case, L.A. Times, May 20, 1993, at A1 (describing case in which a male plaintiff alleging sexual harassment by his female supervisor obtained a $1 million verdict). The frequency of such harassment, however, is significantly lower in comparison to harassment of women by men. The Equal Employment Opportunity Commission (EEOC) reports that about 10% of sexual harassment complaints are claims by men. See U.S. Equal Employment Opportunity Commission, Sexual Harassment Charges EEOC & FEPAs Combined: FY 1992-FY 1998 (last modified Jan. 14, 1999) 〈http://www.eeoc.gov/stats/harass.html〉. In addition, the Merit Systems Protection Board ("MSPB") found that harassment of women occurred more than twice as frequently as harassment of men. See Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges 13 (1994) (noting that 44% of women reported being harassed within the two-year period preceding the report, while only 19% of men reported such harassment). This finding is consistent with an earlier MSPB survey concerning sexual harassment: 42% of women reported harassment in 1980, compared to only 15% of men for the same time period. See Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Is It a Problem? 36 (1981). Indeed, one need only peruse the captions of sexual harassment cases to confirm that the vast majority of such actions are brought by women. Thus, I have chosen to follow the common path and speak of the alleged harasser as a male and the putative victim as a female.
13. Notwithstanding this usage, the principles are equally applicable when a man is harassed by a woman.
14. See infra notes 18-22 and accompanying text (discussing the various theories under which accused harassers have sued their employers or former employers).
15. J.P. Bolduc, former CEO of W.R. Grace, left his position amid allegations of sexual harassment. Regardless of whether the harassment allegations were a ruse or the primary reason for his departure, Bolduc left with a $42 million severance package. See Elizabeth Lesly, Fall from Grace, Bus. Wk., May 29, 1995, at 60, 60.
16. Determining exactly what conduct constitutes actionable sexual harassment is a difficult task which relies on a case-by-case analysis of the totality of the circumstances. A hostile environment exists when an employee is subjected to unwelcome and sufficiently severe or pervasive sexual conduct at the workplace, but suffers no tangible loss. In Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court addressed the effect the conduct must have on the plaintiff to be considered actionable hostile environment harassment (as opposed to an unactionable annoyance). The Court rejected the severe psychological harm standard that had been adopted by some lower courts at one extreme and noted that Title VII was not a general civility code at the other extreme. See id. at 21-22. The middle area, however, must be determined on a case-by-case basis, relying on factors such as the nature and duration of the conduct, whether it was threatening or humiliating, and whether it interfered with the victim's ability to work. See id. at 23. The Court reiterated this approach in Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998 (1998). There, the Court found that same-sex harassment was actionable, but it emphasized that the context of the purporting harassing actions, including differences between the way males and females relate to each other, would be critical in determining whether the particular charged conduct would be sufficiently severe or pervasive to sustain the cause. Id. at 1002-03; see infra notes 47-52 and accompanying text (providing a more detailed discussion of the Oncale decision).
17. This scenario is derived from Chrysler Motors Corp. v. International Union, Allied Industrial Workers, 959 F.2d 685, 686 & n.1 (7th Cir. 1992) (upholding the district court's refusal to overturn the arbitrator's decision to reinstate the harasser), and Chrysler Motors Corp. v. International Union, Allied Industrial Workers, 2 F.3d 760 (7th Cir. 1993) (affirming the district court's denial of a contempt motion brought for failure to reinstate alleged harasser).
18. For a full discussion of the law governing employers' liability for harassment, see infra Part III. While this Article is couched in terms of the paradox created when Title VII pressures an employer to take corrective action, that pressure may come from other statutes as well, including Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (1994), and sections 804 and 818(b)(1) of the Federal Housing Act, 42 U.S.C. § 3604(b) (1994), or even when common law tort actions are filed by members of the public. Notably, students may bring actions for damages under Title IX if they are harassed by teachers or other school employees. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 76 (1992). Additionally, the lack of corrective action may result in employer liability. See Gebser v. Lago Vista Indep. Sch. Dist., 118 S. Ct. 1989, 1999 (1998). For this reason, arbitrations and cases involving school employees disciplined for harassing students are included in this Article. Further, in instances where a member of the public has complained to the employer that she was sexually harassed by an employee, the employer may act so as to avoid future liability to the public at large.
19. See infra notes 182-93, 213-14, 235 and accompanying text; infra Table 2.
20. A study in the early 1990s estimated the cost to defend a single discrimination claim at $80,000, and put the cost of sexual harassment complaints to a typical Fortune 500 company at approximately $6.7 million annually. Linda Stamato, Sexual Harassment in the Workplace: Is Mediation an Appropriate Forum?, 10 Mediation Q. 167, 167 (1992). The average cost of defending a sexual harassment lawsuit ranges from $20,000 to $200,000. Jay Finegan, Law and Disorder, Inc., April, 1994, at 64, 67. The cost of employer attorney fees and costs are also sometimes reflected by indemnification awards. For example, in Bradley Corp. v. Zurich Insurance Co., 984 F. Supp. 1193 (E.D. Wis. 1997), the insurer was ordered to pay the employer the $232,498.55 plus interest for attorney's fees and costs incurred by the employer in defending a sexual harassment case. See id. at 1205-06.
21. A study in the early 1990s estimated the cost to defend a single discrimination claim at $80,000, and put the cost of sexual harassment complaints to a typical Fortune 500 company at approximately $6.7 million annually. Linda Stamato, Sexual Harassment in the Workplace: Is Mediation an Appropriate Forum?, 10 Mediation Q. 167, 167 (1992). The average cost of defending a sexual harassment lawsuit ranges from $20,000 to $200,000. Jay Finegan, Law and Disorder, Inc., April, 1994, at 64, 67. The cost of employer attorney fees and costs are also sometimes reflected by indemnification awards. For example, in Bradley Corp. v. Zurich Insurance Co., 984 F. Supp. 1193 (E.D. Wis. 1997), the insurer was ordered to pay the employer the $232,498.55 plus interest for attorney's fees and costs incurred by the employer in defending a sexual harassment case. See id. at 1205-06.
22. A study in the early 1990s estimated the cost to defend a single discrimination claim at $80,000, and put the cost of sexual harassment complaints to a typical Fortune 500 company at approximately $6.7 million annually. Linda Stamato, Sexual Harassment in the Workplace: Is Mediation an Appropriate Forum?, 10 Mediation Q. 167, 167 (1992). The average cost of defending a sexual harassment lawsuit ranges from $20,000 to $200,000. Jay Finegan, Law and Disorder, Inc., April, 1994, at 64, 67. The cost of employer attorney fees and costs are also sometimes reflected by indemnification awards. For example, in Bradley Corp. v. Zurich Insurance Co., 984 F. Supp. 1193 (E.D. Wis. 1997), the insurer was ordered to pay the employer the $232,498.55 plus interest for attorney's fees and costs incurred by the employer in defending a sexual harassment case. See id. at 1205-06.
23. See infra notes 146-50 for a discussion of two recent Supreme Court decisions which created an affirmative defense for employers in sexual harassment suits if they can show that they had an appropriate policy and procedure in place and either that it acted reasonably once it knew of the harassment or that the victim of the harassment, knowing of the procedure, did not attempt to use it.
24. See infra notes 112-15 and accompanying text.
25. Generally, private employers may contractually agree to discipline or discharge employees only for just cause or some other articulated standard, and to provide a method for challenging disciplinary action. Public employers may or may not have undertaken contractual obligations, but they have additional constraints on employer actions and forums for resolving those differences. Unless such constraints exist, however, the employment relationship is said to be "at will," and the employer is generally free to act as it wishes without any particular justification so long as it does not violate any laws in the process. In these circumstances, the employee has no direct internal means to challenge the employer's actions; the employee must proceed to a judicial forum and rely on statutory or common law.
26. See, e.g., Kestenbaum v. Pennzoil Co., 766 P.2d 280, 287 (N.M. 1988) (agreeing that the employer need only in good faith believe that the employee engaged in inappropriate conduct in the workplace); Corporon v. Safeway Stores, Inc., 708 P.2d 1385, 1390 (Colo. Ct. App. 1985) (stating that an allegation of unfair dealing in a termination of an at-will contract is not actionable under Colorado law).
27. See, e.g., Lambert v. Morehouse, 843 P.2d 1116, 1119 (Wash. Ct. App. 1993) (declining to review the appellate court's holding that negligent investigation in the employment context is not actionable); Lawson v. Boeing Co., 792 P.2d 545, 548 (Wash. Ct. App. 1990) (finding insufficient evidence of negligence to create a material issue of fact as to negligent investigation).
28. See, e.g., Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 310 (5th Cir. 1995) (alleging that the employer made false accusations of sexual harassment).
29. These cases come in several varieties: allegations that women who participate in creating hostile environments are treated more leniently than men who do so, see Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800-01 (6th Cir. 1994); allegations that the alleged sexual harassment is a pretext for discrimination on some other protected basis, see Williams v. General Mills, Inc., 926 F. Supp. 1367, 1373 (N.D. Ill. 1996); and allegations that a college overreacted to charges of sexual harassment by female students to the detriment of male students, see Yusuf v. Vassar College, 35 F.3d 709, 715-16 (2d Cir. 1994).
30. See, e.g., Farmers Ins. Group v. County of Santa Clara, 906 P.2d 440, 459 (Cal. 1995) (rejecting a claim for indemnification for violations of the Fair Employment and Housing Acts).
31. See, e.g., Williams v. Garraghty, 455 S.E.2d 209 (Va. 1995) (awarding compensatory and punitive damages to a supervisor accused of sexual harassment). Although the propriety of such actions is beyond the scope of this Article, they are described peripherally to complete the picture of the labyrinth of actions surrounding sexual harassment.
32. Hundreds of claims in arbitration cases are based on the theory that the employer lacked just cause for the imposed discipline. See infra Table 1 and accompanying text.
33. To study this issue I compiled a database of some 316 arbitrations of challenges to discipline for sexual harassment. The arbitrations studied are listed in the Appendix.
34. See infra Part IV.
35. For example: What is meant by "unwelcome"? Does "conduct of a sexual nature" impose a limit on the type of conduct considered, or is non-sexual gender-based conduct included? When is conduct "sufficiently" severe to constitute harassment? How does the employer evaluate whether it "should have known" about harassment?
36. See MacKinnon, supra note 2, at 25-28.
37. The number of sexual harassment charges filed with the EEOC climbed from 5623 in 1989 to 15,889 in 1997. See U.S. Equal Employment Opportunity Comm'n, Sexual Harassment Charges EEOC & FEPAs Combined: FY 1992-FY 1998 (last modified Jan. 14, 1999) 〈http://www.eeoc.gov/stats/harass.html〉. In 1995, 1996, and 1997, the number of charges averaged around 15,500 per year. See id. The increase can be attributed to several factors, including the widespread publicity surrounding several allegations of harassment. Since 1991, there has been an almost non-stop barrage of media publicity and coverage of various instances of sexual harassment allegations. These instances include the confirmation hearings for Justice Clarence Thomas, who was accused by Professor Anita Hill of sexually harassing her while she worked for him at the EEOC and the Department of Education; the Tailhook incident, in which female naval officers were forced to run a gauntlet of sexual abuse by male naval officers while attending an annual retreat; the allegations of sexual harassment against Senator Robert Packwood; a sexual harassment lawsuit against President Bill Clinton; and the court martial of the Army's highest ranking enlisted officer. In addition to widespread publicity, and perhaps more importantly, the Civil Rights Act of 1991, Pub. L. No. 102-166, § 102, 105 Stat. 1071, 1072 (1991) (codified at 42 U.S.C. § 1981a (1994)), provided, for the first time, monetary relief in the form of compensatory and punitive damages in federal sexual harassment cases. See id. Thus, increased awareness and increased monetary relief both have contributed to this dramatic increase in charges of sexual harassment.
38. This was first recognized by the Supreme Court in 1986, in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). As noted earlier, hostile environment sexual harassment is also prohibited by a number of other statutes, notably Title IX. See supra note 12. Although there are some differences, actions brought under these statutes generally follow Title VII standards in determining whether sexual harassment occurred. See Gebser v. Lago Vista Indep. Sch. Dist., 118 S. Ct. 1989, 1997-98 (1998); Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463, 469 (8th Cir. 1996); Lipsett v. University of P.R., 864 F.2d 881, 896-97 (1st Cir. 1988). These differences, however, do not eliminate the employer's paradox as discussed herein.
39. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993).
40. In his concurring opinion in Harris, Justice Scalia noted: "Abusive" (or "hostile," which in this context I take to mean the same thing) does not seem to me 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 person['s]" notion of what the vague word 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. 510 U.S. at 24 (Scalia, J., concurring).
41. The Court noted, "such common-law principles may not be transferable in all their particulars to Title VII." Meritor, 477 U.S. at 72.
42. 118 S. Ct. 2257 (1998).
43. 118 S. Ct. 2275 (1998).
44. Both cases adopted a standard of vicarious liability for harassment committed by supervisors while creating an affirmative defense for employers, available under certain circumstances, that relies in part on a demonstration that the employer acted promptly and appropriately to end the harassment. See infra Part III.B.2.
45. 29 C.F.R. § 1604.11 (1997). The EEOC is the agency charged with interpreting and enforcing Title VII. While not binding, the courts routinely look to the EEOC's interpretation of Title VII for guidance. See Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971).
46. 29 C.F.R. § 1604.11(a) (emphasis added and footnote omitted).
47. See Bundy v. Jackson, 641 F.2d 934, 943-46 (D.C. Cir. 1981). While Bundy was the first circuit court case to recognize a sexually based hostile environment, the notion that a hostile environment violates Title VII had previously been recognized in the area of national origin and race. See, e.g., Rogers v. EEOC, 454 F.2d 234, 239 (5th Cir. 1971) (stating that a working environment fraught with discrimination may be an unlawful practice). Other circuits soon followed the Bundy decision. See Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983); Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982).
48. 477 U.S. 57, 64-67 (1986).
49. Id. at 67 (quoting Henson, 682 F.2d at 904). The nature of this showing was again addressed by the Court in its 1993 decision Harris v. Forklift Systems, Inc., although this was done in broad and malleable terms. 510 U.S. 17, 22-23 (1993). As a result, employers have few bright lines when evaluating whether a particular situation will constitute actionable hostile environment harassment. The Court in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257, 2265 (1998), further muddied the waters, and the lower courts must now grapple with the question of when threats and/or submission will constitute a sufficiently severe or pervasive hostile environment. In Burlington, the plaintiff sued her employer under a quid-pro-quo theory based, among other things, on unrealized threats of an adverse employment action. See id. at 2263. The Court, however, held this type of threatening conduct constituted only a hostile environment claim and not a Title VII claim, requiring a showing that the conduct was sufficiently severe or pervasive. See id. at 2265. The Court did not discuss whether the analysis for hostile environment based on threats would be any different than that for other types of offensive conduct, but rather relied on the lower court's finding that the action at issue was sufficiently severe or pervasive. See id. The Burlington Court specifically expressed no opinion as to whether a single unfulfilled threat is sufficient to constitute discrimination in the terms or conditions of employment. See id. For reasons discussed in part II.B.4, I submit that a sufficiently severe hostile environment is created whenever sexual demand is coupled with a threat of adverse employment action, regardless of whether the victim rejects it or accedes to it.
50. 682 F.2d at 903. Most circuits use the Henson formulation or some variation of it. See, e.g., Hall v. Gus Constr. Co., 842 F.2d 1010, 1013 (8th Cir. 1988) (following Henson); Swentek v. USAir, Inc., 830 F.2d 552, 557 (4th Cir. 1987) (same); Rabidue v. Osceola Refining Co., 805 F.2d 611, 619-20 (6th Cir. 1986) (same); Jones v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir. 1986) (same).
51. See Henson, 682 F.2d at 903-05.
52. In fact, all individuals have protected group status in several respects: all individuals have a race, a gender, a national origin, and a religion. Proof of discrimination, however, necessarily requires a nexus between the particular group membership and the act of discrimination: the discrimination must be based on the group membership. Thus, for example, a person may claim protected group membership based on race, and allege that she was discriminated against because of her race. She may not, however, claim protected class status based on religion, but then allege race-based discrimination.
53. See, e.g., Doe by Doe v. City of Belleville, 119 F.3d 563, 574 (7th Cir. 1997) (noting that the requirement that the discrimination be "because of gender" has not affected courts in cases of opposite-sex harassment since it is generally accepted that when a female employee is harassed in explicitly sexual ways by a male worker she has been discriminated against "because of" her sex), vacated, 118 S. Ct. 1183 (1998).
54. Compare Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996) (holding same-sex harassment actionable), with McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191 (4th Cir. 1996) (holding same-sex heterosexual sexual harassment claims not actionable).
55. 118 S. Ct. 998 (1998).
56. See id. at 1002.
57. See id.
58. Id.
59. See id. at 1001.
60. See Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (holding that homosexuality is not a status protected under Title VII); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979) (same). But see Katherine M. Franke, What's Wrong With Sexual Harassment?, 49 Stan. L. Rev. 691 (1997) (arguing that discrimination based on sexual orientation should be a violation of Title VII).
61. Thus, for example, in an all male environment, an individual singled out and subjected to a campaign of sexually overt harassing conduct could compare his treatment to that of females to establish that the conduct is "based on sex." Nor could he rely on the sexual nature of the conduct to establish this element, particularly if the conduct is accompanied by epithets or banter relating to sexual orientation. Moreover, since Oncale required a showing of difference in treatment based on gender, further complications arise in cases where the harasser is bisexual. The District of Columbia Circuit long ago recognized these difficulties in Barnes v. Costle, when it suggested in dicta that harassment by a bisexual would never be actionable. 561 F.2d 983, 990 n.55 (D.C. Cir. 1977) ("In the case of the bisexual superior, the insistence upon sexual favors would not constitute gender discrimination because it would apply to male and female employees alike."). More recently, the District Court for the District of Columbia, in Ryczek v. Guest Services, Inc., 877 F. Supp. 754 (D.D.C. 1995), commented on the "practical flaw in this Circuit's interpretation of Title VII": "any defendant could avoid Title VII liability for sexual harassment by claiming to be a bisexual or by harassing members of both sexes." Id. at 762. Again, however, it is not clear how this outcome would be affected by Oncale, since it specifically endorses comparative treatment as proof that the harassment was based on sex and questions reliance on the mere sexual nature of the words or conduct.
62. The lack of clarity is particularly problematic when the employer's policy simply bans "sexual harassment" or tracks the language in the EEOC guidelines and employees have direct appeal rights tied to a requirement of just cause. Because under just cause the employer bears the burden of proving an actual violation, not just its good faith belief that there was a violation, see infra Part IV.B., the vagueness of the law clearly plunges the employer into a quagmire.
63. Of course, employers in states or municipalities which include sexual orientation as a basis for a charge of discrimination would include such acts in its policy; also some employers may chose to include this type of harassment on their own, regardless of federal or state law simply to avoid the privacy issues involved.
64. The Supreme Court recognized the difficulty in determining this factor when it first considered hostile environment sexual harassment in Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986) (noting that the determination of whether the conduct was unwelcome did not turn on simple voluntariness, but rather presented "difficult problems of proof").
65. In discussing the complex nature of sexual harassment and its connection to voluntary romantic relationships, one court commented: On the one hand, courts are understandably reluctant to chill the incidence of legitimate romance. People who work closely together and share common interests often find that sexual attraction ensues. It is not surprising that those feelings arise even when one of the persons is a superior and the other is a subordinate. . . . We spend longer hours at the office or traveling for job-related purposes, and often discover that our interest and values are closer to those of our colleagues or fellow employees than to those of people we meet in connection with other activities. In short, increased proximity breeds increased volitional sexual activity. Nichols v. Frank, 42 F.3d 503, 510 (9th Cir. 1994). Further, according to a survey published in Psychology Today, 80% of employees have participated in or know of an office romance. Mary Loftus, Frisky Business, Psychol. Today, Mar.-Apr. 1995, at 34, 36.
66. See Barnes, 561 F.2d at 999 (MacKinnon, J., concurring). The court in Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988), was aware of this problem and noted, "[t]he man must be sensitive to signals from the woman that his comments are unwelcome, and the woman, conversely, must take responsibility for making those signals clear." Id. at 898; see also Eleanore K. Bratton, The Eye of the Beholder: An Interdisciplinary Examination of Law and Social Research on Sexual Harassment, 17 N.M. L. Rev. 91, 98-101 (1987) (noting the disparity between men's and women's perceptions of what constitutes sexual conduct); cf. Robin D. Wiener, Note, Shifting the Communication Burden: A Meaningful Consent Standard in Rape, 6 Harv. Women's L.J. 143, 147-49 (1983) (describing the "gender gap in sexual communications").
67. 477 U.S. at 68-69. The victim alleged that she capitulated to the sexual demands of her supervisor for fear of losing her job. See id. at 60-61. The existence of the relationship was hotly contested. See id. at 61. Rather than make a determination as to its existence, however, the district court found that "[i]f [Vinson] and Taylor did engage in an intimate or sexual relationship during the time of [Vinson's] employment [at the bank], that relationship was a voluntary one by plaintiff having nothing to do with her continued employment [at the bank] or her advancement or promotions at that institution." Vinson v. Taylor, 23 Fair Empl. Prac. Cas. (BNA) 37, 42 (D.D.C. 1980), rev'd, 753 F.2d 141 (D.C. Cir. 1985).
68. Meritor, 477 U.S. at 68.
69. Id. at 68-69.
70. On the other hand, it may lead the woman to be seen as an outsider who does not belong. See Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486, 1515 (M.D. Fla. 1991) (accounting numerous incidents of sexual harassment against a female ship-fitter and how when she complained to her supervisor his response was that the shipyard was a "man's world").
71. For example, in Weinsheimer v. Rockwell International Corp., 754 F. Supp. 1559 (M.D. Fla. 1990), aff'd, 949 F.2d 1162 (11th Cir. 1991), the plaintiff (Weinsheimer), a foul-mouthed and aggressive woman, had continuous problems with a male co-worker whose work she inspected. Among other things, he told her several times a week to "suck him" and to "give him head." Id. at 1561. He also flashed a knife he used in his job, and, according to Weinsheimer, once held the knife to her throat. See id. The court found that the co-worker's language and behavior was "based not upon sex, but rather upon work or personal disputes." Id. at 1565 n.15. The plaintiff's many complaints were largely ignored by a supervisor who did not believe her complaints were serious, in part because of her general demeanor. See id. at 1564. Astoundingly, the court, instead of viewing Weinsheimer's complaints as evidence that the conduct was unwelcome, viewed the fact that the supervisor did not take her seriously as evidence that her complaints were not serious. See id. Having discounted Weinsheimer's complaints, the court then used her participation in shop banter and boisterous, expletive-filled telephone conversations with her boyfriend as a basis for finding that she had not sustained her burden of proving that the conduct was unwelcome. See id. at 1565-67. A contrary result was reached in Carr v. Allison Gas Turbine Division, General Motors Corp., 32 F.3d 1007 (7th Cir. 1994), where the plaintiff, the first and only woman tinsmith, regularly used sexual terms and expletives and was receptive to sexually oriented jokes and banter. The plaintiff's male co-workers made numerous statements, such as, "I won't work with any cunt," id. at 1009, and continually referred to her as a "'whore,' 'cunt' and 'split tail.'" Id. Further, they defaced her toolbox with sexually oriented graffiti and painted it pink. See id. The Seventh Circuit held that the males' specifically targeted language and actions crossed the line that separates "merely vulgar and mildly offensive" shop talk from that which is "deeply offensive and sexually harassing." Id. at 1010. Moreover, the court rejected the argument that had the plaintiff been "ladylike," the hostile environment would not have occurred, finding it difficult to imagine a situation "in which male factory workers sexually harass a lone woman in self-defense" of the woman's use of expletives. Id. at 1011 (emphasis omitted). Other courts have also not been so harsh to hard-edged plaintiffs. In Swentek v. USAir, Inc., 830 F.2d 552 (4th Cir. 1987), for example, the plaintiff was described as "a foul-mouthed individual who often talked about sex." Id. at 557. Notwithstanding this characterization, the court of appeals reversed the lower court's holding that a co-worker's use of foul language and singing of lewd limericks was "not unwelcome." Id. The court noted that Swentek told the co-worker to leave her alone, and reasoned that the use of foul language or sexual innuendo in a consensual setting "does not waive 'her legal protections against unwelcome harassment.'" Id. (quoting Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983)). Critical to its holding, however, was a finding that the alleged harasser did not know of the plaintiff's prior conduct, see id., leaving open the possibility that she might not have been able to prove unwelcomeness had the same conduct been carried out by a different person.
72. See, e.g., supra note 63 (discussing several cases in which the women plaintiffs often acted in "unladylike" ways).
73. See supra note 63 (discussing these cases).
74. Since an employer can be found liable based on conduct about which it "should have known," see infra notes 113-15 and accompanying text, this situation is troublesome if the employer's agent fails to perceive the conduct as sexual harassment. In Carr, for example, the plaintiff's supervisor testified that he observed some of the offensive conduct, but "not being a woman himself he was not sure that the statements would be considered offensive by a woman." Carr, 32 F.3d at 1010.
75. Thus, when coupled with blatantly sexual conduct or words, courts have found that acts as diverse as using non-sexual physical force, see McKinney v. Dole, 765 F.2d 1129, 1137 (D.C. Cir. 1985), urinating in the gasoline tank of a female co-worker's car, see Hall v. Gus Constr. Co., 842 F.2d 1010, 1012 (8th Cir. 1988), failing to repair a woman's equipment, see id., and forcing a woman to sit on a wet seat, see Hicks v. Gates Rubber Co., 833 F.2d 1406, 1409 (10th Cir. 1987), are appropriately considered when evaluating whether "sexual" harassment has caused a hostile environment. I use the term "sexist" speech, as opposed to "sexual" speech, to refer to comments that denigrate women based on stereotypes about women that are not sexual in nature. For instance, in Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988), statements by male residents that women would not make good surgeons because they spent too much time putting on makeup could be said to be sexist, not sexual, speech. See generally Marcy Strauss, Sexist Speech in the Workplace, 25 Harv. C.R.-C.L. L. Rev. 1, 6-8 (1990) (discussing several categories of sexist speech).
76. For example, in Spain v. Gallegos, 26 F.3d 439 (3d Cir. 1994), the Third Circuit reversed an order of summary judgment against a sexual harassment claim based on false rumors that the plaintiff was having an affair with her supervisor. See id. at 451-52. The rumors allegedly started because the supervisor spent time alone with the employee, constantly pressuring her to loan him money. See id. at 442. The court reasoned that because a male who spent an inordinate amount of private time with a supervisor would not be viewed by co-workers as using his sexuality to get ahead, the resulting hostile environment - which included being shunned by her co-workers and receiving a low rating for ability to get along with co-workers - was based on sex. See id. at 448. In Reconceptualizing Sexual Harassment, 107 Yale L.J. 1683 (1998), Professor Vicki Schultz argues that this area should be expanded even further, so that the aggregate environmental effects of all types discrimination traditionally analyzed as disparate treatment be simultaneously considered under a hostile environment paradigm. See id. at 1769-74. Accordingly, one's subjection to non-sexual discriminatory conduct could be the basis of a hostile environment claim in addition to whatever traditional claim is warranted. I agree that all such harassing conduct should be considered -alone or in tandem with evidence of sexual misconduct - when determining whether a work environment is hostile. As noted above, a few courts have acted on that basis. However, to avoid confusion, such harassment should be considered "gender-based" harassment actionable to the same extent that similar types of harassment would be actionable if committed on some other prohibited basis, such as race or ethnicity. To characterize such conduct as "sexual" is misleading, since most use of the term "sexual" are referring in some way to things related to sexuality, as opposed to gender. To the extent that such conduct would be actionable, it should be clearly delineated in the employer's anti-harassment policy.
77. Indeed, requiring that the conduct be "because of sex" and "of a sexual nature" disjunctive, as opposed to conjunctive, not only would result in less ambiguity to a lay person reading the regulation (or the anti-harassment policy parroting the regulation), but also would resolve many of the issues surrounding same-sex harassment. Under such a policy, unwelcome conduct that was either (1) of a sexual nature or (2) based on sex would be prohibited if that conduct was sufficiently severe or pervasive to alter working conditions and create a hostile environment.
78. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).
79. In Harris v. Forklift Systems, Inc., the Court upheld the requirement that the conduct be measured both objectively and subjectively, stating: Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation. 510 U.S. 17, 21-22 (1993).
80. Reasonable-person, reasonable-victim, and reasonable-woman are all standards that have been endorsed by various courts. See infra notes 89-90 and accompanying text.
81. See infra notes 80-84 and accompanying text.
82. See supra Part II.B.2.
83. 510 U.S. 17 (1993).
84. In Harris, the victim, Teresa Harris, was subjected to various sexist comments by Charles Hardy, her boss and the president of the company. Among the statements made publicly to Harris were, "You're a woman, what do you know," and "We need a man as the rental manager." Id. at 19. Further, Hardy suggested to Harris that the two of them "go to the Holiday Inn to negotiate [Harris's] raise," and asked Harris if she had promised a client sex. Id. Finally, Hardy required Harris and other women to pick up objects he purposefully threw on the floor in front of his desk, and to pick coins out of his front pockets. Id.
85. See id. at 21-30.
86. Id. at 21.
87. Id.
88. Id. at 23. Notwithstanding these guidelines, it remains difficult to determine whether conduct is sufficiently severe or pervasive to be actionable.
89. Viewing all of the circumstances, as directed by the Supreme Court in Harris, id. at 23, necessarily implies viewing the various factors in tandem with one another.
90. See Ellison v. Brady, 924 F.2d 872, 877-78 (9th Cir. 1991).
91. See, e.g., King v. Board of Regents, 898 F.2d 533, 537 (7th Cir. 1990) ("Although a single act can be enough, generally, repeated incidents create a stronger claim of hostile environment . . . ." (citation omitted)).
92. While finding the particular conduct at issue not actionable, the court in Schweitzer-Reschke v. Avnet, Inc., 874 F. Supp. 1187 (D. Kan. 1995), noted that less severe conduct may become actionable if it is so frequent and pervasive that it affects the employee's environment. See id. at 1193.
93. Harris v. Forklift Sys., Inc., 510 U.S. 17, 24 (1993) (Scalia, J., concurring). The tremendous discretion given to the jury was also recognized in Baskerville v. Culligan International Co., 50 F.3d 428 (7th Cir. 1995), where the court noted that the "'line that separates the merely vulgar and mildly offensive from the deeply offensive and sexually harassing'" is "obviously" not bright and that where uncertainty exists, the jury must decide. Id. at 431 (quoting Carr v. Allison Gas Turbine Div., 32 F.3d 1007, 1010 (7th Cir. 1994)).
94. The Court in Harris used the phrase "reasonable person," Harris, 510 U.S. at 22, without comment or analysis. Subsequent lower court cases have continued to follow the precedent in their circuit or have decided the issue for themselves if no such precedent exists. See, e.g., Currie v. Kowalewski, 842 F. Supp. 57, 63 (N.D.N.Y.) (noting that Harris did not decide whether a reasonable person or reasonable woman standard would apply), aff'd, 40 F.3d 1236 (2d Cir. 1994). Moreover, Oncale did not specifically address the question of perspective, but the Court again referred to the reasonable person "in the plaintiff's position, considering 'all the circumstances.'" Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998, 1003 (1998) (quoting Harris, 510 U.S. at 23).
95. See Leslye M. Fraser, Sexual Harassment in the Workplace: Conflicts Employers May Face Between Title VII's Reasonable Woman Standard and Arbitration Principles, 20 N.Y.U. Rev. L. & Soc. Change 1, 6-11 (1992-93) (explaining how the reasonable-woman standard may make it easier for women to sucessfully bring hostile environment claims).
96. Rabidue v. Osceola Refining Co., 805 F.2d 611, 620-21 (6th Cir. 1986). The Sixth Circuit quickly backed away from that extreme standard the following year in Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987). In support of its decision to use a reasonable-woman standard in determining whether a victim of sexual harassment was constructively discharged, the court cited Judge Keith's dissent in Rabidue and acknowledged "that men and women are vulnerable in different ways and offended by different behavior." Id. at 637 n.2. Other courts, however, continue to use the reasonable person standard. See, e.g., Brooms v. Regal Tube Co., 881 F.2d 412, 418-19 (7th Cir. 1989) (considering the likely effect of a defendant's conduct upon a reasonable person's ability to perform her or his work).
97. Ellison v. Brady, 924 F.2d 872, 880 (9th Cir. 1991).
98. While widely denoted a "reasonable-woman" standard, the standard actually looks at the reasonable person of the victim's sex. The Ellison court noted that "where male employees allege that co-workers engage in conduct which creates a hostile environment, the appropriate victim's perspective would be that of a reasonable man." 924 F.2d at 879 n.11; see also Yates, 819 F.2d at 637 n.2 (noting that a reasonable-man standard would apply to case involving harassment of a male). The paradox of a reasonable "victim" standard, however, is that it creates the danger of reinforcing stereotypes. Does it mean that a man would lose if he is subjectively offended by on-the-job conduct that would offend a (stereotypically) reasonable woman, but not a (stereotypically) reasonable man? It would seem more logical to have a unified objective threshold standard based on a reasonable woman's perspective. Since subjective offense is also an element, employers would still be protected against frivolous suits, and both men and women could be assured of working in an environment that is not sexually hostile.
99. By blatant sexual touching, I mean unwelcome, intentional touching of another person's crotch, upper-inner thigh, buttocks, or breasts. I use the term quasisexual touching to refer to touching of another person's knees, and other touching which is sustained and involves movement (such as massages and rotating hips).
100. In Scott v. Sears, Roebuck & Co., 798 F.2d 210, 210-11 (7th Cir. 1986), occasional slapping on the buttocks by a co-worker was found insufficient. Similarly, in Christoforou v. Ryder Truck Rental, Inc., 668 F. Supp. 294 (S.D.N.Y. 1987), several instances of sexual touching, pestering, and asking for dates was deemed too infrequent to be cognizable sexual harassment. See id. at 298-300. Consider the facts of Hosey v. McDonald's Corp., 71 Fair Empl. Prac. Cas. (BNA) 201 (D. Md. 1996), aff'd, 113 F.3d 1232 (4th Cir. 1997), in which a teenage male promptly complained when a female co-worker propositioned him numerous times and pinched or patted him on the buttocks on approximately ten occasions. See id. at 202. In granting the defendant summary judgment, the court noted that it was common for teenagers to ask each other for dates and to use unprofessional language. See id. at 203. The court further found that the pinching in and of itself was not sufficiently severe to create a hostile environment, and that the few times such action occurred was not sufficiently pervasive. See id. Yet the court in Campbell v. Kansas State University, 780 F. Supp. 755 (D. Kan. 1991), found that slapping the plaintiff on her buttocks and threatening to repeat that conduct was cognizable, stating that such "patently abusive and offensive" behavior was sufficient even though it occurred only infrequently and for a short period. Id. at 762.
101. For examples of legally insufficient conduct, see Dellert v. Total Vision, Inc., 875 F. Supp. 506, 508 (N.D. Ill. 1995) (ruling on a case in which the female employee of an eyeglass store was told by superior that the glasses would look better if she did not have a skirt on and that he would have to "jump her" if she ever posed in a manner depicted in their advertising), and Schweitzer-Reschke v. Avnet, Inc., 874 F. Supp. 1187, 1190 (D. Kan. 1995) (ruling on a case in which a female employee was told to suck-up, kiss-ass, wear shorter skirts, bat eyes, and flirt to get special pricing). But see Guiden v. Southeastern Pub. Serv. Auth., 760 F. Supp. 1171, 1178-79 (E.D. Va. 1991) (finding that a female employee - who was asked whether she was "going hooking," and told by a co-worker that she was wearing a padded bra and that he wanted her body - had established sufficiently actionable conduct, even in the absence of any physical contact). It is difficult, however, to discern the circumstances under which a single threat would not constitute action severe enough to constitute an actionable hostile environment. When a threat is made by a supervisor who has the authority to carry it out, the victim may react two different ways: she may refuse the demand, or she may, if desperate to maintain employment, accede to the demand. If she refuses the demand, she has no way of knowing whether the threat will be fulfilled; she cannot see into her harasser's mind to know the threat was empty. Consequently, while the single threat itself may seem to be an isolated incident, the poisonous environment it creates may continue for some undefined time until the victim can regain confidence that it will not be carried out. Moreover, during this time, her work may suffer or she may feel that legitimate criticism of her work is execution of the threat. In short, while the threat may take only a moment, the effect of even a single threat is likely to be long-lasting. On the other hand, the victim may accede to the threat. Obviously, even a single unwanted, coerced sexual encounter can have long lasting effects on the victim. Moreover, as with the unfulfilled threat, the victim will not know if and when another demand will be forthcoming, so that a single act can poison the victim's work atmosphere for a period of time.
102. See supra Part II.B.2.
103. See Laura A. Reese & Karen E. Lindenberg, Implementing Sexual Harassment Policy 64 (1999).
104. See supra note 63.
105. Employer liability is also the fifth element of a hostile environment sexual harassment claim. See supra note 43 and accompanying text.
106. See infra Part IV.
107. For example, the EEOC procured a $34 million dollar settlement fund to be shared by 350 women in settling its claims of sexual harassment against Mitsubishi Motors. See Sexual Harassment: Mitsubishi Settles EEOC Suit for $34 Million, Daily Lab. Rep. (BNA), June 12, 1998, at AA-1. Further, a six-year legal battle or a single allegation of sexual harassment cost the law firm Baker and McKenzie $6 million in damages, fees, and costs. See Sexual Harassment: Law Firm Pays $6 Million in Awards, Fees, Costs for Sexual Harassment by Ex-Partner, Daily Lab. Rep. (BNA), Sept. 14, 1998, at A-8.
108. For example, the EEOC procured a $34 million dollar settlement fund to be shared by 350 women in settling its claims of sexual harassment against Mitsubishi Motors. See Sexual Harassment: Mitsubishi Settles EEOC Suit for $34 Million, Daily Lab. Rep. (BNA), June 12, 1998, at AA-1. Further, a six-year legal battle or a single allegation of sexual harassment cost the law firm Baker and McKenzie $6 million in damages, fees, and costs. See Sexual Harassment: Law Firm Pays $6 Million in Awards, Fees, Costs for Sexual Harassment by Ex-Partner, Daily Lab. Rep. (BNA), Sept. 14, 1998, at A-8.
109. See Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2293 (1998); Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257, 2270 (1998).
110. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72 (1986).
111. See Frederick J. Lewis and Thomas L. Henderson, Employer Liability for "Hostile Work Environment" Sexual Harassment Created by Supervisors: The Search for an Appropriate Standard, 25 U. Mem. L. Rev. 667 (1995); David Benjamin Oppenheimer, Exacerbating the Exasperating: Title VII Liability of Employers for Sexual Harassment Committed by Their Supervisors, 81 Cornell L. Rev. 66 (1995).
112. See Frederick J. Lewis and Thomas L. Henderson, Employer Liability for "Hostile Work Environment" Sexual Harassment Created by Supervisors: The Search for an Appropriate Standard, 25 U. Mem. L. Rev. 667 (1995); David Benjamin Oppenheimer, Exacerbating the Exasperating: Title VII Liability of Employers for Sexual Harassment Committed by Their Supervisors, 81 Cornell L. Rev. 66 (1995).
113. In Meritor, the plaintiff, Mechelle Vinson, alleged that she submitted to demands for sexual favors by her supervisor, a bank branch manager, and thus engaged in intercourse with him throughout her successful four-year career at Meritor Savings Bank. 477 U.S. at 59-60. After recognizing both quid-pro-quo and hostile environment harassment as violations of Title VII, the Court noted that Vinson's claim was one of hostile environment. See id. at 67. The Court declined to issue a definitive rule regarding employer liability in sexual harassment cases. See id. at 72. The lower courts in Meritor had taken opposing views of employer liability. The district court opined that the employer would not be liable - even if the conduct at issue was harassment - because as Vinson had never complained about Taylor to anyone, the bank was without notice. See Vinson v. Taylor, 23 Fair Empl. Prac. Cas. (BNA) 37, 41 (D.D.C. 1980), rev'd, 753 F.2d
114. See Meritor, 477 U.S. at 72.
115. See id. ("[W]e hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors.").
116. See id. ("[A]bsence of notice to an employer does not necessarily insulate that employer from liability.").
117. See id. ("[W]e reject petitioner's view that the mere existence of a grievance procedure and a policy against discrimination, coupled with respondent's failure to invoke that procedure, must insulate petitioner from liability.").
118. See id. (stating that the factual record was not sufficient to make a ruling regarding employer liability).
119. Id.
120. Restatement (Second) of Agency § 219 (1958).
121. Id.
122. Prior to Meritor, courts considering the question of employer liability consistently found liability for quid-pro-quo harassment. See Horn v. Duke Homes, Inc., 755 F.2d 599, 604-06 (7th Cir. 1985); Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 80-81 (3d Cir. 1983). Post-Meritor cases continued to do so. See, e.g., Nichols v. Frank, 42 F.3d 503, 513 (9th Cir. 1994) (finding that a request for performance of sexual favors with a discussion of job benefits or detriments in a single conversation constitutes quid-pro-quo sexual harassment); Carrero v. New York City Hous. Auth., 890 F.2d 569, 579 (2d Cir. 1989) (holding that in a quid-pro-quo sexual harassment case "the employer is held strictly liable for its employee's unlawful acts"). For example, when a supervisor discharges an employee who rebuffed sexual advances, the discharge itself is made upon the authority delegated to the supervisor by the employer. Thus, the harassing superior in quid-pro-quo cases "acts as and for the company, holding out the employer's benefits as an inducement to the employee for sexual favors." Carrero, 890 F.2d at 578. The gravamen of quid-pro-quo harassment, like that of other types of employment discrimination, is that an employment decision was made on a discriminatory basis. This essay, however, focuses primarily on hostile environment sexual harassment. For an in-depth analysis of quid-pro-quo sexual harassment, see Eugene Scalia, The Strange Career of Quid-Pro-Quo Sexual Harassment, 21 Harv. J.L. & Pub. Pol'y 307 (1998).
123. Many courts used the term "respondeat superior" liability. See, e.g., Rabidue v. Osceola Ref. Co., 805 F.2d 611, 621 (6th Cir. 1986) (holding that the burden of proof for the plaintiff is to "demonstrate respondeat superior liability"); Jones v. Flagship Int'l, 793 F.2d 714, 722 (5th Cir. 1986) (defining respondeat superior liability); Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983) (holding that except in some circumstances a plaintiff must prove the "employer liable under some theory of respondeat superior"); Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir. 1982) (defining respondeat superior liability). However, the use of the phrase "respondeat superior" is somewhat of a misnomer in this context. As explained in Guess v. Bethlehem Steel Corp., 913 F.2d 463 (7th Cir. 1990), under a true theory of respondeat superior, the employer is vicariously liable for the wrongful conduct of its employees regardless of whether it had knowledge of the conduct. Id. at 465; see also Hirschfeld v. New Mexico Corrections Dep't, 916 F.2d 572, 577 n.5 (10th Cir. 1990) (noting that the "negligence standard for employer liability occasionally has been mislabeled as 'respondeat superior'"). However, the knowledge/correction standard is a rather straightforward application of section 219(2)(b) of the Restatement of Agency, which imposes liability when the master was negligent or reckless. With co-worker hostile environment cases, therefore, the employer is not vicariously liable for its employees' conduct, but rather is liable - if at all - only for its own misconduct in delaying or failing to take corrective action once it knew or should have known of the employees' misconduct. See Guess, 913 F.2d at 464-65. Even courts imposing "respondeat superior" liability define the phrase in terms identical to or very similar to the standard cited in the text - to cover cases where the employer knew or should have known of the misconduct and failed to take appropriate corrective action. See Mackey v. Milam, 154 F.3d 648, 651 (6th Cir. 1998).
124. See Restatement (Second) of Agency § 219(2)(b) (1958).
125. See Ronald Turner, Title VII and Hostile Environment Sexual Harassment: Mislabeling the Standard of Employer Liability, 71 U. Det. Mercy L. Rev. 817, 833 (1994).
126. I do not purport to be providing an exhaustive review of the various standards used by the 13 federal circuits. My examples are intended to illustrate the breadth of the variation which existed among courts prior to the Supreme Court's decisions in Faragher and Burlington. For a thorough review, including a circuit-by-circuit analysis, see Frederick J. Lewis & Thomas L. Henderson, Employer Liability for "Hostile Work Environment" Sexual Harassment Created by Supervisors: The Search for an Appropriate Standard, 25 U. Mem. L. Rev. 667, 687-730 (1995).
127. See Cortes v. Maxus Exploration Co., 977 F.2d 195, 198-99 (5th Cir. 1992) (adopting the knowledge/correction standard as an element of a claim).
128. See Kauffman v. Allied Signal, Inc., 970 F.2d 178, 184 (6th Cir. 1992). Additionally, if the tortious act was foreseeable, the employer could be liable for its own negligence in not taking steps to prevent it. To this extent, it seems that the existence of a sexual harassment policy, along with diligent efforts to educate all employees as to its content and to strictly enforce it, would be appropriate factors to consider in determining negligence and foreseeability. Under tort law, however, the subsequent conduct of the employer is irrelevant once the employee commits a foreseeable tort while acting in the scope of employment. It is therefore surprising that the court in Kauffman found that the harasser's conduct was within the scope of his employment, but then excused the company from liability based on its subsequent corrective action. Id. at 185. The court did not explain why the employer's corrective action negated liability; one can only assume that it was making a less-than-complete use of agency law based on the Supreme Court's admonishment in Meritor that agency law may not be transferable in all aspects. Ironically, the court in Kauffman used the existence of the sexual harassment policy as evidence that sexual harassment was foreseeable, and thus within the scope of employment. Id. at 184. This approach stands in sharp contrast to the recent practice in some jurisdictions to limit liability in cases where the employer has a well-executed plan. See infra note 153 and accompanying text.
129. See Kauffman, 970 F.2d at 183.
130. The Restatement of Agency plainly states that "A master is subject to liability for the torts of his servants committed while acting in the scope of their employment." Restatement (Second) of Agency § 219(1) (1958). Thus, once the Sixth Circuit in Kauffman found the acts were within the scope of employment, 970 F.2d at 184, it is unclear how subsequent action could excuse the employer. The Supreme Court later struggled with this very problem in Burlington, but it concluded that sexual harassment would never be within the scope of employment. Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257, 2260 (1998).
131. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1417-18 (10th Cir. 1987).
132. See id. at 1418.
133. See Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir. 1994) (holding employees liable if they use their actual or apparent authority to further the harassment or if they are aided in accomplishing harassment by the existence of the agency relationship); see also Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 64 (2d Cir. 1992) (recognizing that the actions of a supervisor at a sufficiently high level in the hierarchy would necessarily be imputed to the company, yet refusing to do so in this case where the home office was in one city and the harassment took place in another).
134. 29 F.3d 103 (3d Cir. 1994).
135. See id. at 110. The reasoning is that in light of a well-publicized and consistently applied anti-harassment policy, the victim's belief that the supervisor acted upon delegated authority was unreasonable. See also Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1553 (11th Cir. 1997) (finding no liability based on constructive knowledge because of the well known and vigorously enforced anti-harassment policy which plaintiff knew of but failed to use).
136. Burlington, decided by the en banc Seventh Circuit, generated ten separate opinions. 123 F.3d 490 (7th Cir. 1997), aff'd, 118 S. Ct. 2257 (1998). Faragher, decided by the en banc Eleventh Circuit, generated five different opinions. 111 F.3d 1530 (11th Cir. 1997), rev'd, 118 S. Ct. 2275 (1998).
137. Slowik was a mid-level manager, a vice president in one of five business units within one of Burlington's eight divisions. See Burlington, 118 S. Ct. at 2262. Ellerth worked in a two-person office in Chicago; she reported directly to her only colleague at that location, who in turn answered directly to Slowik. See id. Ellerth also had occasional direct contacts with Slowik. See id. While on a business trip, Slowik invited Ellerth to a hotel lounge, which she felt compelled to accept. See id. While there, Slowik made comments about her breasts, told her she needed to "loosen up" and warned her that he could make her life at Burlington very hard or very easy. See id. During a promotion interview, he again told her she was not "loose enough" and then rubbed her knee. See id. Ellerth ultimately got the promotion. See id. On another occasion when Ellerth telephoned him on a business matter, Slowik told her that he did not have time for her unless she told him what she was wearing. See id. Shortly after Ellerth's immediate supervisor began cautioning her about her work performance, Ellerth quit. See id. 128. See id. at 2263-64.
138. Id. at 2265.
139. See id. at 2266.
140. See id. (stating "[t]he harassing supervisor often acts for personal motives, motives unrelated and even antithetical to the objectives of the employer").
141. Id. at 2267. A much more detailed discussion of why sexual harassment is outside of the scope of employment appears in the Faragher opinion. See Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2289-91 (1998).
142. See Burlington, 118 S. Ct. at 2267.
143. The Court briefly reviewed and found inapplicable subsections (a) where the employer acts with tortious intent or the employee's high rank makes him or her the company's alter ego, and (c) which involves nondelegable duties. See id. 135. Id. Negligence liability, which depends on the employer's failure to act in the face of actual or constructive knowledge, would not have helped Ellerth, since there was no basis for actual or constructive knowledge; Ellerth had not complained about Slowik's conduct, and that conduct took place only when the two were alone. See id. at 2262.
144. The Court found the first clause of § 219(d)(2), relating to apparent authority, would not normally be applicable because "[i]n the usual case, a supervisor's harassment involves the misuse of actual power, not the false impression of its existence," which would be more appropriately analyzed under the Restatement's "aided in" agency relation [219(2)(d)] rule. Id. at 2268.
145. See id.
146. Id.
147. The Court explained that tangible employment action meant "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. This narrow definition appears to be a retrenchment from the old quid-pro-quo standard, which reached less severe adverse actions taken by the supervisor. See supra note 128 and accompanying text. Under the standard announced in Burlington, reassignment to a more inconvenient job would be insufficient. See 118 S. Ct. at 2269 (citing Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994)). In my view, a clearer standard would find vicarious liability if the supervisor took any adverse action by virtue of his supervisory power, regardless of the severity of such action. A supervisor cannot reassign an employee to a more inconvenient job but for the exercise of delegated employer authority. In Faragher, for example, the harasser, Terry, told Faragher, "'Date me or clean the toilets for a year.'" Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2280 (1998). Had this threat been acted on, it is not clear that it would constitute an "employer action" as defined in Burlington. Terry could not have assigned Faragher to clean toilets, or any other unpleasant assignment, however, except through use of his delegated authority. Thus, I cannot see how any work-related adverse action would not constitute an action "aided by" the agency relationship.
148. See Burlington, 118 S. Ct. at 2269.
149. See id.
150. There the petitioners worked as ocean lifeguards at a remote beach location. See 118 S. Ct. at 2280. They were verbally and physically harassed by two supervisors, including one of their immediate supervisors and the individual in charge of the location. See id. at 2281. One harasser, Bill Terry, served as the Chief of the Marine Safety division, had power to hire lifeguards (subject to approval by higher management), and had authority to supervise all aspects of lifeguards work and training. See id. at 2280. The other harasser, David Silverman, was a lieutenant who was promoted to captain during Faragher's employ. See id. Silverman was responsible, in part, for making lifeguards' daily assignments. See id. Lifeguards reported to lieutenants and captains, who in turn reported to the chief. See id. 143. Id. at 2291 (quoting Susan Estrich, Sex at Work, 43 Stan. L. Rev. 813, 854 (1991)).
151. Burlington, 118 S. Ct. at 2270.
152. The Court specifically noted, "we are bound by our holding in Meritor that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment." Id. (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72 (1986)).
153. See id. (citing Fed. R. Civ. P. 8(c)).
154. Id. The Court noted that it was satisfying the dual purposes of using agency principles and Title VII policy of encouraging forethought by employers. See id.
155. Id.
156. See Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2289 (1998) (noting that lower courts uniformly judge co-worker harassment by a negligence standard, under which the employer was liable if it knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action).
157. This discussion has focused on Title VII standards. Standards for determining liability under other relevant statutes, such as Title IX, were similarly unsettled and thus also contributed to the employer's paradox. See e.g., Smith v. Metropolitan Sch. Dist. Perry Township, 128 F.3d 1014, 1034 (7th Cir. 1997) (holding that the proper standard for Title IX liability is actual knowledge and failure to take action), cert. denied, 118 S. Ct. 2367 (1998); Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th Cir. 1997) (holding that the standard of liability under Title IX is actual knowledge of a substantial threat). The Supreme Court, however, in Gebser v. Lago Vista Independent School District, 118 S. Ct. 1989, 2000 (1998), implemented a significantly stricter standard for employer liability for teacher-student harassment under Title IX than exists for co-worker harassment under Title VII. Title IX generally prohibits educational institutions receiving federal funds from discriminating on the basis of sex. The Court first distinguished the remedial schemes of Title IX and Title VII, noting that while Title VII is focused on compensating victims, Title IX is focused on protecting individuals from discriminatory practices. See id. at 1997. It further pointed out that Title IX's express remedies operate only on actual notice and provide for the recipient of federal funds an opportunity to come into compliance following actual notice. See id. at 1998. With those differences in mind, the Court concluded that liability for the implied right of action for individual damages should similarly be predicated on actual knowledge. Thus, it adopted a standard of actual knowledge and deliberate indifference. See id. at 2000. The application of this standard likely will diminish the employer's paradox insofar as employee-on-student harassment because individual victims will be unlikely to prevail so long as the employer takes some action so as not to demonstrate deliberate indifference. Nonetheless, an employer who metes out different discipline for similar conduct may create yet another problem: employee actions seeking reversal of discipline because of inconsistent responses to sexual harassment.
158. See supra note 112. I suggest that the lower courts are uniform in recognizing this language as representing the standard. As discussed in the next section, however, I do not suggest that there has been uniform application or results using this standard.
159. Burlington, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2292-93. Constructive knowledge, however, presents problems which could be resolved by requiring complaints to be filed. Typically, courts will find constructive knowledge when the conduct is extremely pervasive. Pervasiveness sufficient to satisfy the "severe or pervasive" standard is not enough in and of itself to show constructive knowledge because employers would then have constructive knowledge of all conduct constituting a hostile environment. See Lockhard v. Pizza Hut, 162 F.3d 1062, 1072 (10th Cir. 1998) (finding a single incident of physically threatening conduct sufficiently severe and pervasive to create an actionable hostile work environment). If this conduct is taking place at a remote location, or is innocuous conduct, employers may have difficulty in determining whether a hostile environment exists. A complaint requirement (or at least an affirmative defense in the absence of a complaint), therefore, makes sense in this context.
160. Burlington, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2292-93. Constructive knowledge, however, presents problems which could be resolved by requiring complaints to be filed. Typically, courts will find constructive knowledge when the conduct is extremely pervasive. Pervasiveness sufficient to satisfy the "severe or pervasive" standard is not enough in and of itself to show constructive knowledge because employers would then have constructive knowledge of all conduct constituting a hostile environment. See Lockhard v. Pizza Hut, 162 F.3d 1062, 1072 (10th Cir. 1998) (finding a single incident of physically threatening conduct sufficiently severe and pervasive to create an actionable hostile work environment). If this conduct is taking place at a remote location, or is innocuous conduct, employers may have difficulty in determining whether a hostile environment exists. A complaint requirement (or at least an affirmative defense in the absence of a complaint), therefore, makes sense in this context.
161. The second part of the defense relates to how the employer responds to such complaints. Employer response issues are addressed in the next section. Although the affirmative defense is new, the propriety and effect of how employers respond has been subject to numerous interpretations.
162. Farley v. American Cast Pipe Co., 115 F.3d 1548, 1553 (11th Cir. 1997).
163. See id.
164. Id. at 1553-54.
165. See, e.g., Barrett v. Omaha Nat'l Bank, 726 F.2d 424, 427 (8th Cir. 1984) (stating that the promptness and adequacy of the employer's response to correct instances of alleged sexual harassment must be evaluated upon a case-by-case basis). These cases all discuss the requirements of prompt and appropriate corrective action in the context of the plaintiff having the burden of persuasion on the issue of the non-existence of appropriate corrective action. Under the affirmative defenses created by Faragher and Burlington, the employer bears the burden of proving that it took such action. This subtle difference may not have any impact on cases where the employer took clear and decisive action. Where less decisive action is taken, however, the employer may not be able to sustain its burden. Should cases develop in this manner, this would constitute one more pressure point for the employer seeking to avoid the labyrinth of liability.
166. For a discussion of the complications resulting from requests for confidentiality or complaints made to the "wrong" supervisor, see infra Part III.B.2.a.
167. See, e.g., Carmon v. Lubrizol Corp., 17 F.3d 791, 793 (5th Cir. 1994) (noting that an investigation started the same day); Nash v. Electrospace Sys., Inc., 9 F.3d 401, 403 (5th Cir. 1993) (noting that the investigation and remedy occurred within one week); Saxton v. AT&T, 10 F.3d 526, 535 (7th Cir. 1993) (noting that an investigation started the next day, a report was issued in two weeks, and a remedy within five weeks); Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 310 (5th Cir. 1987) (noting that the one-day time lapse between the complaint and the remedy was reasonable); Ryczek v. Guest Servs., Inc., 877 F. Supp. 754, 756 (D.D.C. 1995) (noting that an investigation commenced the same day the complaint was made); Tunis v. Corning Glass Works, 747 F. Supp. 951, 958-59 (S.D.N.Y. 1990) (noting that the employer "took immediate corrective measures"), aff'd mem., 930 F.2d 910 (2d Cir. 1991).
168. See, e.g., Bennett v. New York City Dep't of Corrections, 705 F. Supp. 979, 988 (S.D.N.Y. 1989) (finding that a delay of four weeks was too long and, thus, denying a motion by the employer for summary judgement).
169. See, e.g., Baker v. Weyerhaeuser Co., 903 F.2d 1342, 1348 (10th Cir. 1990) (holding that over six months with no action is too long).
170. See Knabe v. Boury Corp., 114 F.3d 407, 411 (3d Cir. 1997) (explaining that an employer is liable for an employee's behavior under a negligence theory of agency if "management-level employees had actual or constructive knowledge about the existence of a sexually hostile work environment and failed to take prompt and adequate remedial action" (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990)).
171. For example, in Bennett v. Corroon & Black Corp., 845 F.2d 104, 106 (5th Cir. 1988), the Court of Appeals found clearly erroneous the lower court's finding that the employer had acted promptly, despite the fact that they immediately investigated and took corrective action upon receiving the plaintiff's complaint about an offensive cartoon with her name posted in the men's room. The court's decision hinged on the fact that the CEO of the company had seen the cartoon prior to the complaint and failed to act.
172. See Gallagher v. Delaney, 139 F.3d 338, 348 (2d Cir. 1998) (describing the confidential complainant as creating a "catch-22" situation for the employer: if the employer honors the victim's request, it "risks liability for not quickly and effectively remedying the situation").
173. See id. (quoting Torres v. Pasano, 116 F.3d 625, 634 (2d Cir.), cert. denied, 118 S. Ct. 563 (1997)).
174. For instance, in Baskerville v. Culligan International Co., 50 F.3d 428 (7th Cir. 1995), the Seventh Circuit refused to consider the plaintiff's earlier complaints to the alleged harasser's supervisor, noting that those complaints were "not . . . going through proper channels," since the company's harassment policy required that complaints be made to the human resources department. Id. at 432. Similarly, in Hosey v. McDonald's Corp., 71 Fair Empl. Prac. Cas. (BNA) 201 (D. Md. 1996), aff'd, 113 F.3d 1232 (4th Cir. 1997), the court discounted the teenage victim's complaints to a variety of lower level personnel whose titles included the word supervisor or manager, but who had no actual authority to discipline the alleged harasser. See id. at 202, 204.
175. See Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998), in which the court stated: An official's knowledge will be imputed to an employer when: (A) the official is at a sufficiently high level in the company's management hierarchy to qualify as a proxy for the company; or (B) the official is charged with a duty to act on the knowledge and stop the harassment; or (C) the official is charged with a duty to inform the company of the harassment. Id. at 64 (quoting Torres, 116 F.3d at 636-37).
176. 981 F.2d 340 (8th Cir. 1992).
177. See id. at 343-44. More recently, in Varner v. National Super Markets, Inc., 94 F.3d 1209 (8th Cir. 1996), the Eighth Circuit again refused to absolve an employer of liability when a complaint was made to an individual who had "undisputed supervisory authority" but who was not officially designated in the employer's policy on sexual harassment. Id. at 1213. Under the policy, any supervisor receiving complaints of sexual harassment was to direct the victim to a specified individual and not take any action himself. See id. at 1212. The court noted that a procedure which "does not require a supervisor who has knowledge of an incident of sexual harassment to report that information to those who are in a position to take appropriate action" is flawed and will not shield the employer from liability. Id. at 1214.
178. In Coates v. Sundor Brands, Inc., No. 97-9102, 1999 WL 12822 (11th Cir. Jan. 14, 1999), the victim initially revealed her complaint to a co-worker who was also an ordained minister. See id. at *1. The co-worker acted as a go-between, and presented her complaint, confidentially, to upper management. See id.
179. Judge Barkett, concurring in Coates, clearly explained the victim's dilemma and the consequences of allowing non-designated supervisors to ignore victims complaints: [T]he legitimately complaining employee, having received no relief, is left feeling chastened and even less inclined to press her complaint, and thus even more compromised in her ability to perform unimpeded the tasks and responsibilities for which she was hired. Just as it is difficult for an employee to protect herself from harassment by a supervisor because of the power he wields over her in the employment hierarchy, so too is it difficult for an employee - who may have been extremely reluctant to confide in a manager in the first place - to demand that a supervisor provide a prompt and effective response to her complaint. Id. at *8 (Barkett, J., concurring). He further noted: A supervisor's failure to act when that supervisor has knowledge of the harassment and the authority to prevent it inflicts harm on the victim that is as real as if the supervisor were doing the harassing. The victimized employee in this situation thus suffers two distinct, discriminatory harms: the co-worker's initial harassment; and the supervisor's implicit approval of the harassment, which changes and intensifies the quality of the injury. Id.
180. For example, in Karibian v. Columbia University, 14 F.3d 773, 776 (2d Cir. 1994), the plaintiff initially complained in 1988 to the University's Panel on Sexual Harassment. At that time, she met with a panel member and also with the University's Equal Opportunity Coordinator. See id. At Karibian's request, however, both meetings were confidential and the University took no action. See id. Indeed, it was not until almost two years later, when Karibian dropped her confidentiality request, that Columbia acted. See id. Notwithstanding the confidentiality request, however, under these facts Columbia would be hard-pressed to argue that it was without notice of the harassment in 1988, or that it acted promptly upon receiving such notice.
181. In Al-Dabbagh v. Greenpeace, Inc., 873 F. Supp. 1105 (N.D. Ill. 1994), the court refused to dismiss the plaintiff's claim, holding that the company could be held liable for the sexual assault on the plaintiff based on its earlier failure to take corrective action against a known "womanizer." Id. at 1108. In that instance, the employee sexually assaulted the plaintiff on the first day he met her. See id. Although the plaintiff obviously had not complained, the company's failure to act on earlier complaints from other victims was used as the basis for liability. See id. at 1111. In short, its previous failure to act rendered any later corrective action untimely. Thus, the employer's response to Al-Dabbagh's complaint did not shield it from liability.
182. Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987), is on point here. In that case, one of several women harassed in 1980 complained to a mid-level manager "as a friend," but out of fear for her job she did not want to make a formal complaint to the Director of Personnel or the Director of EEO Compliance. Id. at 635. Two years later, two additional employees harassed by the same individual did make formal complaints, which resulted in an investigation and ultimately the demotion of the harasser. See id. at 633. In finding the company liable despite its quick action, the court concluded that even though it would be difficult to say unequivocally that the company had notice of the earlier harassment, the factual finding that it knew or upon reasonable diligence should have known of the harassment was not clearly erroneous. See id. at 636. In light of its earlier knowledge, the court reasoned that, "although Avco took remedial action once the plaintiffs registered complaints, its duty to remedy the problem, or at a minimum, inquire, was created earlier when the initial allegations of harassment were reported." Id. at 636; see also Bennett v. Corroon & Black Corp., 845 F.2d 104, 106 (5th Cir. 1988) (finding notice where the employer "saw . . . offensive cartoons and allowed them to remain where they were" for a week even though the employee did not formally complain).
183. Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1553-54 (11th Cir. 1997) (emphasis omitted).
184. See id. at 1553 (rejecting alleged constructive knowledge because, among other things, the alleged harassment was not common knowledge and there was no first-hand corroboration of the harassment).
185. See Wallace v. Dunn Constr. Co., 59 Fair Empl. Prac. Cas. (BNA) 994, 996 (N.D. Ala. 1991) (discussing the relationship between promptness, pervasiveness, and the inference of constructive knowledge), aff'd in part, rev'd in part, 62 F.3d 374 (11th Cir. 1995).
186. Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983); see Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991); Waltman v. International Paper Co., 875 F.2d 468, 478-79 (5th Cir. 1989). This standard, however, is not universal. Some courts have held that the appropriate inquiry is what a reasonable employer would have done to remedy the sexual harassment. See Brooms v. Regal Tube Co., 881 F.2d 412, 421 (7th Cir. 1989).
187. A surprising number of employers take no action, even in the face of a direct, unqualified complaint. For example, complainants have been told to "get used to it," "not make a stink about it," and "ignore it" in response to direct, unqualified complaints. See, e.g., Hope A. Comisky, "Prompt and Effective Remedial Action?" What Must an Employer Do to Avoid Liability for "Hostile Work Environment" Sexual Harassment?, 8 Lab. Law. 181, 185-86 (1992) (citing Evans v. Ford Motor Co., 768 F. Supp. 1318, 1326 (D. Minn. 1991); Wall v. AT&T Techs., Inc., 754 F. Supp. 1084, 1088 (M.D. N.C. 1990); Danna v. New York Tel. Co., 752 F. Supp. 594, 609 (S.D.N.Y. 1990)). In some instances the response is dismissive. In Varner v. National Super Markets, Inc., 94 F.3d 1209 (8th Cir. 1996), the plaintiff was told in response to her complaint that "That's just Bob being himself." Id. at 1211 (internal quotations omitted). One of the most baffling responses was that of the human resources manager in Cortes v. Maxus Exploration Co, 977 F.2d 195 (5th Cir. 1992). After being told of the harassing conduct, he instructed the complainant to close her eyes and imagine pink elephants in a parade holding onto each other's tails with their trunks. See id. at 198. He then snapped his fingers in front of her closed eyes and instructed her to forget the pink elephants. See id. He advised her to respond in the same way to the harassment - to just put it out of her mind. See id. From that point on, whenever she again complained, he snapped his fingers to remind her of his proposed way of handling the harassment. See id. 180. Courts have recognized that the employer's duty to take some action arises once it has knowledge of a complaint, regardless of whether the harassment continues. For example, in Fuller v. City of Oakland, 47 F.3d 1522, 1525-28 (9th Cir. 1995), the victim was subjected to harassing conduct for a number of months by a co-worker who had previously been her boyfriend. After concluding that the conduct, which was severe and pervasive enough to be actionable, had ceased before the employer had knowledge, the Ninth Circuit nonetheless imposed liability on the employer, which had conducted a half-hearted investigation and found the complaints unfounded. See id. at 1528-29. While noting that the corrective action must be reasonably calculated to end the harassment, the court reasoned that determining whether the harassment has stopped is merely a "test for measuring the efficacy of a remedy" and does not excuse the employer's obligation to take some action. Id. at 1528 (emphasis omitted). According to the court, once an employer learns of the harassing conduct - present or past - "a remedial obligation kicks in" and the only question is whether the employer is relieved of liability for the harasser's actions because it took sufficient disciplinary and remedial action in response to the complaints. Id. 181. See, e.g., Kauffman v. Allied Signal, Inc., 970 F.2d 178, 185 (6th Cir. 1992) (refusing to impose liability based on the employer's immediate discharge of the alleged harasser). While taking this drastic action will certainly avoid liability for sexual harassment, such summary discharge is more likely to trigger an "angry male" action. See infra Part IV. Further, courts do not generally require discharge of the alleged harasser. See Ellison v. Brady, 924 F.2d 872, 881-82 (9th Cir. 1991) (citing Barrett v. Omaha Nat'l Bank, 726 F.2d 424, 427 (8th Cir. 1984)). However, because discharge is occasionally the only appropriate remedy, such as when the harassment is particularly severe or threatening, it is properly identified as the outer limit of "appropriate" corrective action.
188. It is not completely clear whether the action must be disciplinary. Nevertheless, in Intlekofer v. Turnage, 973 F.2d 773 (9th Cir. 1992), Judge Hall clearly believed that disciplinary action was needed, writing, "[w]e interpret the phrase 'appropriate corrective action' to require some form, however mild, of disciplinary measures." Id. at 778 (quoting 29 C.F.R. § 1604.11(d) (1998)); see also Ellison, 924 F.2d at 882 ("Employers send the wrong message to potential harassers when they do not discipline employees for sexual harassment."). Not all courts, however, require that the action be disciplinary. Some courts have refused to impose liability when the harassment, though severe and pervasive enough to be actionable, was not egregious, and in fact stopped due to some non-disciplinary action promptly taken by the employer. See, e.g., Knabe v. Boury Corp., 114 F.3d 407, 414-15 (3d Cir. 1997) (ruling that a non-disciplinary conversation with harasser was sufficient because it was reasonably calculated to stop the harassment, regardless of its actual effects). In fact, in his concurring opinion in Intlekofer, Judge Keep argued that because Title VII is remedial, not punitive, the employer's obligation is met so long as it effectively ends the harassment. See Intlekofer, 973 F.2d at 783 ("[A] 'mere request to stop' unlawful conduct may be sufficient to alter the unlawful behavior of some harassers, and therefore sufficient to discharge the employer's duty under Title VII.").
189. The discipline should be "assessed proportionally to the seriousness of the offense." Ellison, 924 F.2d at 882 (quoting Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309 (5th Cir. 1987)).
190. In Ellison, the Ninth Circuit summed up the standard by referring to its actual effectiveness: "In essence, then, we think that the reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in harassment." Id. The standard has backward-looking overtones because actual effectiveness is a key component in assessing reasonableness.
191. See, e.g., Baskerville v. Culligan Int'l Co., 50 F.3d 428, 432 (7th Cir. 1995) (finding no liability where the harasser was told to stop, was put on probation, and had a promotion temporarily withheld, and the harassment stopped); Saxton v. AT&T, 10 F.3d 526, 537 (7th Cir. 1993) (finding no liability because the harasser was transferred, and thus could no longer harass the victim, despite the victim's dissatisfaction with the remedy); Dornhecker, 828 F.2d at 309 (noting that the victim quit before it could be determined if the employer's proposed remedy would have stopped the harassment); Swentek v. USAir, Inc., 830 F.2d 552, 558-59 (4th Cir. 1987) (stating specifically that the fact that there was no further harassment was significant).
192. See, e.g., Guess v. Bethlehem Steel Corp., 913 F.2d 463, 464 (7th Cir. 1990) (finding no liability where the employer reprimanded and denied promotion to the alleged harasser); Barrett, 726 F.2d 424, 427 (ruling that placing an offender on probation with a warning that further misconduct will result in termination was adequate).
193. Fuller v. City of Oakland, 47 F.3d 1522 (9th Cir. 1995), is illustrative of some of the factors that influence a court to look behind an investigation and deem it a sham. The investigator did not interview the alleged harasser until the plaintiff had filed an EEOC complaint. See id. at 1526. Further, the investigator flatly accepted the alleged harasser's version of events whenever they conflicted with the victim's account. See id. at 1529. In addition, the investigator failed to interview other witnesses and failed to check the alleged harasser's telephone records for the period when the victim had received numerous harassing hang-up phone calls. See id. at 1526, 1529.
194. Progressive discipline is the principle that unless the offense truly warrants severe action, the goal should be correction rather than strict penalization. It is often the basis for a reduction in discipline, particularly when the employee was discharged. See Frank Elkouri & Edna A. Elkouri, How Arbitration Works 916-17 (Marlin M. Volz & Edward P. Goggin eds., 5th ed. 1997).
195. See Fuller, 47 F.3d at 1528-29.
196. See Yates v. Avco Corp., 819 F.2d 630, 635-37 (6th Cir. 1987).
197. See Ryczek v. Guest Servs., Inc., 877 F. Supp. 754, 756-60 (D.D.C. 1995).
198. Generally, courts adhere to the standard that the remedy must be "reasonably calculated to prevent further harassment." Juarez v. Ameritech Mobile Comm., Inc., 746 F. Supp. 798, 804 (N.D. Ill. 1990), aff'd, 957 F.2d 317 (7th Cir. 1992). Removing the offensive materials, see Tumis v. Corning Glass Works, 747 F. Supp. 951 (S.D.N.Y. 1990), aff'd, 930 F.2d 910 (2d Cir. 1991), written warnings, see Swentek v. USAir, Inc. 830 F.2d 552, 554 (4th Cir. 1987), and suspensions have all been found adequate, see Juarez, 746 F. Supp. at 805.
199. The employer may also be subjected to liability in a negligent retention suit. See, e.g., Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 744 (4th Cir. 1997) (finding no negligent retention claim where employee did not commit a tort or Title VII violation); see also Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (ruling that the employer's failure to discharge the offender earlier established liability).
200. See infra notes 197-204 and accompanying text.
201. See infra notes 200-05 and accompanying text; infra Table 1.
202. Any analysis of direct challenges to discipline imposed to correct a sexually hostile environment must begin by acknowledging that it is impossible to determine the total number of such challenges, much less their outcome. While the results of many such challenges are described in reported arbitration opinions, not all opinions are reported; indeed not all arbitral awards are accompanied by opinions. The arbitrator's award is that portion of the decision which formally announces the result; it is the functional equivalent of a judgment. See Elkouri & Elkouri, supra note 188, at 383-84. The opinion, like a judicial opinion, explains the rationale behind the award. See id. at 384-86. Even for those which are reported, there is no uniform reporting system. Some of the numerous sources of reported arbitration opinions are Labor Arbitration (Bureau of National Affairs) (LA (BNA)), Labor Arbitration Information System (LAIS), American Arbitration Awards (AAA), Arbit, Industrial Labor Relations Report and Commerce Clearing House Labor Arbitration Reporter (Arb.). Further, there is overlap among some of the various services, making a single compilation of all reported decisions difficult, if not impossible. Moreover, arbitrators' decisions to reverse or reduce disciplinary sanctions imposed by employers account for only a portion of the reversals and reductions that take place in the collective bargaining grievance process. It is impossible to tell how many disciplinary actions in the sexual harassment context are reversed or reduced when a grievance is settled in the early stages of the process, but such cases certainly exist. Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991), for example, arose from just such a scenario. In that case, the alleged harasser, Gray, wrote several ominous letters to the victim, Ellison. See id. at 874. When Ellison complained to her and Gray's supervisor, Gray was transferred to another facility. See id. Three weeks after his transfer, however, Gray filed a grievance seeking to return, See id. The grievance was settled, and Gray was allowed to return to the same facility where Ellison worked, with the transfer being reduced from being a permanent change to a six-month cooling-off period. See id. This settlement, like many others, is simply not reported. It would have remained private and unascertainable had Ellison not decided to sue once she leaned that Gray was returning. In another case, Ohiocubco, Inc., Lab. Arb. Awards (CCH) ¶ 8394, at 4994 (May 25, 1988), the employer initially warned the grievant and moved him to another shift, whereupon he grieved and was returned in settlement. See id. at 4997. The employer's later attempt to move him again, in response to the victim's complaints about his return was disallowed by the arbitrator. See id. at 4998-99. Again, absent further action by the employer, information regarding his initial settlement would not have been reported. A grievance procedure usually has several steps, ranging from an informal complaint to arbitration. The number of steps and the time frame and complexity of the process vary a great deal, particularly between small and large companies. Many procedures include an initial appeal to the supervisor who imposed the discipline. Typically, the grievance must be initiated within a specified time period. See Elkouri & Elkouri, supra note 188, at 232-33.
203. In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), the Supreme Court held that binding arbitration of age discrimination cases was permissible where there was an individual waiver of judicial remedies. In addition, the Court vacated and remanded Dean Witter Reynolds, Inc. v. Alford, 500 U.S. 930 (1991), a Title VII case with the same issue, with instructions that the Fifth Circuit reconsider in light of Gilmer. The Fifth Circuit did so and reversed its position finding that Title VII claims were subject to mandatory arbitration agreements. See Alford v. Dean Witter Reynolds Inc., 939 F.2d 229, 230 (5th Cir. 1991). Most circuit courts have now held that individual agreements to arbitrate Title VII claims are binding. See Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith Inc., 163 F.3d 53, 60 (1st Cir. 1998); Benefits Communication Corp. v. Klieforth, 642 A.2d 1299, 1304-05 (D.C. App. 1994); Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698, 699-700 (11th Cir. 1992). The Supreme Court has recently revisited the issue, first raised in Alexander v. Gardner-Denver Co., 415 U.S. 36, 49 (1974), of whether a collectively bargained waiver is binding. See Wright v. Universal Maritime Serv. Corp., 119 S. Ct. 391, 395-96 (1998) (holding that there was no waiver of the employee's rights under the Americans with Disabilities Act because the terms of the waiver were general and broad and declining to answer the question of whether a specific waiver of such rights would ever be valid). The discord in this area, however, has no effect on whether an employer's discipline of alleged sexual harassers may be arbitrated, because the authority to arbitrate such cases does not depend on the authority to arbitrate Title VII cases. Id. at 394 (distinguishing between what was needed to mandate arbitration of substantive Title VII claims and other contract-based arbitration).
204. See Elkouri & Elkouri, supra note 188, at 884-85. Thus, an employer may discharge an employee out of personal animosity, even if the individual was a superb performer. On the other hand, the employer may not discharge an employee on any of the bases prohibited by Title VII or by other federal, state, or local antidiscrimination laws.
205. Even those employees without direct appeal rights have not been stopped from collaterally challenging employer actions, with occasional success. See supra notes 17-21 and accompanying text. While there is some uniformity in the subset of these cases decided on the basis of other employment statutes, such as those involving a challenge that persons of color are disciplined more harshly for harassment than are white males, the remaining cases - based on state common law - are very individual in nature and beyond the scope of this Article.
206. I use the term "just cause" throughout this Article to cover the various renditions of the term found in collective bargaining agreements, such as "cause," "proper cause," and "justifiable cause." All of these terms have the same meaning and serve the same purpose - to prevent arbitrary discipline and discharge. See Elkouri & Elkouri, supra note 188, at 889.
207. Even when they are not, employees sometimes seek to have such a clause implied from employee handbooks. See William J. Holloway & Michael J. Leech, Employment Termination: Rights and Remedies 33-45 (1993). In fact, by 1989, more than 45 states had accepted theories that eroded the "at-will" doctrine, including theories relying on implied contracts. See Finegan, supra note 14, at 66.
208. See Holloway & Leech, supra note 201, at 482-90 (explaining how the Fourteenth Amendment confers due process rights in public employees). In addition to constitutional due process rights, many public-sector employees also have statutory rights providing for direct appeals in various forums. For example, certain federal employees have direct appeal rights to the Merit Systems Protection Board. State employees frequently have equivalent rights using a wide variety of forums and procedures. See, e.g., Bexar County v. Davis, 802 S.W.2d 659 (Tex. 1990) (holding that there is no governmental requirement to notify the employee of the witnesses accusing him). These state and federal appeal rights certainly can lead into the labyrinth; consider the decade long saga of the unsuccessful attempt to fire Phillip Hillen for sexual harassment. See Hillen v. Department of the Army, 72 M.S.P.R. 369, 370 (1996). The initial attempt to remove Hillen from federal service occurred in 1985. See id. In 1997, the case was finally put to rest, with Hillen receiving a 90-day suspension. See King, Director, Office of Personnel Management v. Hillen, 108 F.3d 1391 (Fed. Cir. 1997). Because the appeal right varies so widely under federal and state law, however, the differences are not analyzed in this Article.
209. Ninety-four percent of all collective bargaining agreements contain just cause or equivalent clauses. See Roger I. Abrams & Dennis R. Nolan, Toward a Theory of "Just Cause" in Employee Discipline Cases, 1985 Duke L.J. 594, 594 n.1.
210. While not all arbitrators will imply just cause when it is not bargained for, many will, reasoning that an employer's ability to arbitrarily terminate employees would render seniority protections meaningless. See, e.g., Herlitz, Inc., 89 Lab. Arb. (BNA) 436, 441 (1987) (Allen, Arb.) (holding that just cause limitation on discharges is implied in labor agreements).
211. 46 Lab. Arb. (BNA) 359 (1966) (Daugherty, Arb.). Although this formulation of just cause has been called the "most widely accepted and applied standard," Anchorage Hilton Hotel, 102 Lab. Arb. (BNA) 55, 58 (1993) (Landau, Arb.), other definitions exist. For instance, in Armstrong Industries, Inc., 78 Lab. Arb. (BNA) 227 (1982) (Morgan, Arb.), Arbitrator Morgan noted that the specific attributes of just cause cannot be stated categorically but must be determined on the facts of each case. See id. at 228. In the context of that arbitration - which involved a challenge to a discharge - Morgan described just cause as consisting of three steps: first, determining whether the offense charged was serious enough to warrant discharge; if so, then determining whether the employee actually committed the offense charged; and finally, examining mitigating or extenuating circumstances that might call for a reduction in penalty. See id. at 228-29. A two-step inquiry has also been endorsed. See Fairweather's Practice and Procedure in Labor Arbitration 327 (Ray J. Schoonhoven ed., BNA 3d ed. 1991) (inquiring whether cause for discipline existed under the facts as presented and whether the discipline imposed was appropriate).
212. See Enterprise Wire Co., 46 Lab. Arb. (BNA) at 363-64.
213. Id. at 362.
214. See Elkouri & Elkouri, supra note 188, at 916.
215. See id.
216. The employee's overall conduct is considered because discipline for different types of misconduct may be considered simultaneously. The employee's overall disciplinary record may be considered, regardless of whether all the discipline was imposed for similar violations. Elkouri & Elkouri, supra note 188, at 925-929; see also infra Part IV.C.2 (analyzing a number of arbitration cases and providing examples of specific arbitrations which reduced penalties).
217. See, e.g., Santa Catalina Island Co., No. 92-3-160, 1993 WL 787981, at *2-3 (Feb. 16, 1993) (Winograd, Arb.) (holding a four-month [full-season] suspension appropriate because the grievant did not respond to counseling); Boeing Commercial Airplane Group, 93-1 Arb. ¶ 4051 (1993) (Cantor, Arb.) (finding a discharge without progressive discipline proper in light of the severity of the conduct); Social Sec. Admin., 81 Lab. Arb. (BNA) 459, 460-61 (1983) (Cox, Arb.) (requiring no lock step progressive discipline and noting that discipline is not only to correct but may also fit the crime).
218. See, e.g., Chrysler Motors Corp. v. International Union, Allied Indus. Workers, 959 F.2d 685, 688 (7th Cir. 1992) (stating that extremely serious offenses, such as striking a supervisor, are grounds for a summary discharge).
219. See supra Part III.B.2.b.
220. See, e.g., Chrysler Motors Corp., 959 F.2d at 689 (declining to reverse an arbitrator's decision to reinstate an employee who "grabbed" a co-worker's breasts because the arbitrator determined that discipline short of discharge would be a sufficient deterrent).
221. As previously noted, review of arbitration decisions is difficult because of the lack of a uniform reporting requirement or system. The sources for reported arbitrations vary widely, with some sources containing a wide variety of decisions, and others being very limited. Because the idiosyncracies of limited reporting systems might have distorted the analysis, I decided not to use them to search for arbitrations. Therefore, I compiled data only from four major general sources of arbitration opinions: the Bureau of National Affairs Labor Arbitration Reporter; the Commerce Clearing House Labor Arbitration Reporter; the Labor Arbitration Information System; and the Westlaw database of "unreported" decisions. Even within these sources, there was significant overlap - the same arbitration might be reported in two or even three of these sources, as well as appearing in other sources. Subsequent to the compilation of the database, all duplicates were eliminated.
222. This occurs when a victim of sexual harassment files a grievance because of some adverse employment decision and alleges that the sexual harassment in some way impacted the decision.
223. See, for example, Vermont, Department of Corrections, 102 Lab. Arb. (BNA) 701 (1994) (McHugh, Arb.), where the arbitrator upheld discipline for engaging in sexual misconduct with a female employee while on duty. See id. at 708-09. Such cases, of course, do not meet the legal definition of sexual harassment since voluntary, non-coerced actions are not "unwelcome." The concept that an employer can prohibit consensual workplace conduct which is not legal sexual harassment, however, is important for the system outlined in the next part.
224. These include arbitrations where a supervisor who did not participate in the alleged harassment had been disciplined on the bases of not reporting, investigating, or eliminating sexual harassment.
225. Some arbitrations, however, defy easy classification. For example, in General Dynamics, Ft. Worth Division, 100 Lab. Arb. (BNA) 180 (1992) (Francis, Arb.), the company charged the victim with sexual harassment based on her sending a letter detailing the harasser's actions toward her to the harasser's wife. See id. at 181. While victim actions were generally excluded, this particular one was included because the company classified the action as sexual harassment. Supervisor malfeasance was included because the failure of the supervisor to act (and discipline based on this) impacts on the employer's liability, thus contributing to the dilemma. See id. at 186-88.
226. For example, in Powermatic/Houdaille, Inc., 71 Lab. Arb. (BNA) 54 (1978) (Cocalis, Arb.), the grievant's discharge for "immoral conduct" was reduced to a suspension. See id. at 56. While the words "sexual
227. In the language area, I also drew a distinction between "garden variety" expletives and language which could possibly be considered sexual harassment under Title VII. The task of sorting language reveals, at least in part, the difficulty with harassment law. In general, I eliminated cases which involved language which is neither sexualized nor directed (that is, not stated to another person, or made about another person). For example, the term "bitch," even muttered under one's breath, but in the presence of another, and arguably about that individual, would be included, while a similar muttering of "Life's a bitch," would not be included.
228. These arbitration cases are listed in the Appendix.
229. For example, the opinion in the Chrysler arbitration, which overturned a discharge, and was subsequently upheld in district court, was not reported in any of the search sources. There are sure to be others similarly not reported. The search was extensive enough, however, to reach some general conclusions, and identify the general trends discussed here.
230. Back pay was awarded in 96 of 152 reversals and reductions. Further, back pay was not imputed in eight reductions because the original penalty did not disrupt pay.
231. A very slight majority (52%) of the arbitrations upheld the original penalty. When combined with the number of arbitrations in which some penalty was allowed, more than 86% of cases resulted in a penalty of some sort.
232. See supra notes 183-86 and accompanying text.
233. Not even uncontested, unwelcome, overt sexual touching automatically yields discharge. See, e.g., Chrysler Motors Corp. v. International Union, Allied Indus. Workers, 959 F.2d 685, 687-88 (7th Cir. 1992) (holding that it is within the arbitrator's power to reinstate an employee charged with sexual assault). Indeed, not even lesser penalties were consistently upheld in instances of overt sexual touching. See, e.g., General Electric Co., No. 93-09863, 1994 WL 837646, at *6-7 (Jan. 5, 1994) (Millious, Arb.) (reducing a reprimand to a warning, even though the victim testified that she felt something between her legs as the grievant passed behind her).
234. I also analyzed the data to determine how, if at all, other factors affected whether the penalty was upheld. I initially reviewed the arbitrations by type of victim, type of penalty and type of employer. These results are presented in Tables 1-3.
235. 71-1 Arb. ¶ 8297 (1971) (Ray, Arb.).
236. Id. at 4044.
237. 97-1 Arb. ¶ 3131 (1996) (Fullmer, Arb.).
238. Id. at 3727-28.
239. See supra Table 3.
240. Additional factors of interest were discussed too infrequently in the arbitrations to reach even tentative conclusions. These included the longevity of the grievant and his overall work, as opposed to disciplinary record, geographic location, and discrimination against the alleged harasser on other bases.
241. In 111 arbitrations, the issue of prior discipline was not discussed at all; thus, no assumptions can be made as to whether there was such discipline. For those cases, the employers' choice of discipline was upheld 49% of the time. that reversals, and even reductions in penalties, occur because the arbitrator disbelieves the complaining victim, or the victim fails to appear at the hearing.
242. See Contico Int'l, Inc., 1996 WL 865254 (July 1996) (Crider, Arb.); National Educ. Ass'n, 23 LAIS 3710 (1995) (Bloodsworth, Arb.); Delta Beverage Group, Inc., 1995 WL 707557 (June 12, 1995) (Singer, Arb.); Headquarters Space & Missile, 103 Lab. Arb. (BNA) 1198 (1995) (McCurdy, Arb.); Earle M. Jorgensen Steel & Aluminum Co., FMCS No. 93-12897, 1994 WL 854694 (Apr. 5, 1994) (Goldstein, Arb.); Pennyrile Rural Elec. Coop. Corp., FMCS No. 93-10232, 1993 WL 788392 (Aug. 24, 1993) (Wren, Arb.); City of Riviera Beach, FMCS No. 91-28226, 1992 WL 732099 (Mar. 26, 1992) (Mayer, Arb.); Stroehman Bakeries, 98 Lab. Arb. (BNA) 873 (1990) (Sands, Arb.); Heublein, Inc., 88 Lab. Arb. (BNA) 1292 (1987) (Ellmann, Arb.); DeVry Inst. of Tech., 87 Lab. Arb. (BNA) 1149 (1986) (Berman, Arb.); Kidde, Inc., 86 Lab. Arb. (BNA) 681 (1985) (Dunn, Arb.); Veterans Admin. Med. Ctr., 82 Lab. Arb. (BNA) 25 (1984) (Dallas, Arb.).
243. See County of Santa Clara, 106 Lab. Arb. (BNA) 1092 (1996) (Levy, Arb.); Hennessy Indus., Inc., 23 LAIS 3703 (1996) (Crane, Arb.); Metropolitan Council Transit Operators, 106 Lab. Arb. (BNA) 68 (1996) (Daly, Arb.); Benzie County Cent. Schs., 1995 WL 852208 (Jan. 16, 1995) (Borland, Arb.); City of San Antonio, 1995 WL 707528 (June 28, 1995) (Moore, Arb.); AFSME Dist. Council 81, Local 218, 1994 WL 875876 (Dec. 12, 1994) (DiLauro, Arb.); Indiana Univ., 94-2 Arb. ¶ 4543 (1994) (Heekin, Arb.); Saginaw Intermediate Bd. of Educ., 95-1 Arb. ¶ 5049 (1994) (Lipson, Arb.); Pennyrile Rural Elec. Coop. Corp., FMCS No. 93-10232, 1993 WL 788392 (Aug. 24, 1993) (Wren, Arb.); Duke Univ., 100 Lab. Arb. (BNA) 316 (1993) (Hooper, Arb.); City of Riviera Beach, FMCS No. 91-28226, 1992 WL 732099 (Mar. 26, 1992) (Mayer, Arb.); City of Pembroke Pines, 93 Lab. Arb. (BNA) 365 (1989) (Cantor, Arb.); City of Seattle, 15 LAIS 3629 (1987) (Snow, Arb.); Clover Park Sch. Dist. 89, 89 Lab. Arb. (BNA) 76 (1987) (Boedecker, Arb.); Akron Metro. Reg'l Transp. Auth., 13 LAIS 2122 (1986) (Strasshofer, Jr., Arb.); Shell Oil Co., 85-1 Arb. ¶ 8130 (1984) (Coffey, Arb.); Veterans Admin. Med. Ctr., 82 Lab. Arb. (BNA) 25 (1984) (Dallas, Arb.); Dodds Liverno Am. High Sch., 82 Lab. Arb. (BNA) 761 (1983) (Zack, Arb.); Port Huron Area Sch. Dist., 80-1 Arb. ¶ 8174 (1980) (Lipson, Arb.).
244. See Fleming Foods, Inc., Houston Div., FMCS No. 96-25543-8, 1997 WL 585677 (May 30, 1997) (Bankston, Arb.); National Educ. Ass'n, 23 LAIS 3710 (1995) (Bloodsworth, Arb.); Genesee County, Friend of the Court, 1994 WL 861447 (June 21, 1994) (Ellmann, Arb.); Georgia Pac. Corp., FMCS No. 92-20643, 1993 WL 788325 (Jan. 28, 1993) (Nicholas, Jr., Arb.); Bethlehem Steel Corp., 1993 WL 801302 (June 21, 1993) (Oldham, Arb.); Prudential Insurance Co. of Am., 1993 WL 801372 (Nov. 16, 1993) (Heinsz, Chairman); International Union of Operating Eng'rs, 93-2 Arb. ¶ 3440 (1992) (Fisher, Arb.); Nuclear Fuel Servs., 93 Lab. Arb. (BNA) 1204 (1989) (Clarke, Arb.); City of Seattle, 15 LAIS 3629 (1987) (Snow, Arb.); Independent Sch. Dist., No. 833, 88 Lab. Arb. (BNA) 713 (1987) (Gallagher, Arb.); Shell Oil Co., 85-1 Arb. ¶ 8130 (1984) (Coffey, Arb.); Washington Scientific Indus., 83 Lab. Arb. (BNA) 824 (1984) (Kapsch, Sr., Arb.); Louisville Gas & Elec. Co., 81 Lab. Arb. (BNA) 730 (1983) (Stonehouse, Jr., Arb.); Southern New England Tel. Co., 9 LAIS 1270 (1982).
245. See Delta Beverage Group, Inc., 1995 WL 707557 (June 12, 1995) (Singer, Jr., Arb.); Earle M. Jorgensen Steel & Aluminum Co., FMCS No. 93-12897, 1994 WL 854694 (Apr. 5, 1994) (Goldstein, Arb.); City of Minneapolis, 101 Lab. Arb. (BNA) 1006 (1993) (Daly, Arb.); RMS Tech., 17 LAIS 3686 (1990) (Nicholas, Jr., Arb.); King Soopers, Inc., 86 Lab. Arb. (BNA) 254 (1985) (Sass, Arb.); Kentucky Textile Indus., Inc., 70-1 Arb. ¶ 8127 (1969) (Williams, Arb.).
246. See University of Mich., 1997 WL 753691 (Jan. 9, 1997) (House, Arb.); USAF, 107 Lab. Arb. (BNA) 1089 (1997) (Stephens, Arb.); Avis Rent a Car Shuttlers, 105 Lab. Arb. (BNA) 1057 (1995) (Wahl, Arb.); Dow Chem. Co., 95 Lab. Arb. (BNA) 510 (1990) (Sartain, Arb.); Ohiocubco, Inc., 88-2 Arb. ¶ 8394 (1988) (Savage, Arb.); Santa Clara County, 88 Lab. Arb. (BNA) 1226 (1987) (Concepcion, Arb.); Weber Aircraft, Inc, 13 LAIS 3344 (1985) (Dunn, Arb.); Vons Grocery Co., 11 LAIS 1259 (1984) (Kaufman, Arb.).
247. See Safeway, Inc., 108 Lab. Arb. (BNA) 787 (1997) (Staudohar, Arb.); Department of Corrections, D.C., 1996 WL 658897 (May 19, 1996) (Rogers, Arb.); County of San Joaquin Sheriff's Dep't, 1995 WL 600998 (Feb. 13, 1995) (Bogue, Arb.); Avis Rent a Car Shuttlers, 105 Lab. Arb. (BNA) 1057 (1995) (Wahl, Arb.); Michigan Dep't of Transp., 104 Lab. Arb. (BNA) 1196 (1995) (Kelman, Arb.); Norfolk Naval Shipyard, 104 Lab. Arb. (BNA) 991 (1995) (Bernhardt, Arb.); City of Harper Woods, 21 LAIS 2080 (1994) (Sugerman, Arb.); United Foods & Commercial Workers Union, Local #653, 1993 WL 797829 (Apr. 9, 1993) (Berquist, Arb.); Springfield Local Sch. Dist., 93-2 Arb. ¶ 3524 (1993) (Curry, Jr., Arb.); United Tel. Co., FMCS No. 92-12531, 1992 WL 726466 (Oct. 2, 1992) (Richard, Arb.); State of Wash. Printing Dep't, 98 Lab. Arb. (BNA) 440 (1992) (Griffin, Arb.); Association of Machinists & Aerospace Workers, 1991 WL 693196 (Sept. 4, 1991) (DiLauro, Arb.); Dow Chem. Co., 95 Lab. Arb. (BNA) 510 (1990) (Sartain, Arb.); GTE Fla., Inc., 92 Lab. Arb. (BNA) 1090 (1989) (Cohen, Arb.); National Oats Co., Inc., 17 LAIS 3765 (1989) (Smith, Arb.); Stater Bros. Mkts., 16 LAIS 4238 (1989) (Wilmoth, Arb.); City of Corpus Christi, 16 LAIS 3951 (1988); Ohio Dep't of Transp., 90 Lab. Arb. (BNA) 783 (1988) (Duda, Jr., Arb.); Washoe County Sherrif s Deputies Ass'n, 88-2 Arb. ¶ 8415 (1988) (Staudohar, Arb.); Rockford Sch. Dist., 88-2 Arb. ¶ 8367 (1987) (Traynor, Arb.); County of Ramsey, 86 Lab. Arb. (BNA) 249 (1986) (Gallagher, Arb.); Mobil Oil, 14 LAIS 3707 (1986) (Ellmann, Arb.); Stearns County, Minn., 13 LAIS 2093 (1986) (ARB); Todd Shipyards Corp., 13 LAIS 3442 (1985) (Koven, Arb.); Meijer, 83 Lab. Arb. (BNA) 570 (1984) (Ellmann, Arb.); Consolidation Coal Co., 79 Lab. Arb. (BNA) 940 (1982) (Stoltenberg, Arb.); Hayes Int'l Corp, 81-2 Arb. ¶ 8603 (1981) (Carson, Arb.); Perfection Am. Co., 73 Lab. Arb. (BNA) 520 (1979) (Flannagan, Arb.); Campbell Soup Co., 78-2 Arb. ¶ 8293 (1978) (Weiss, Arb.); Powermatic/Houdaille, Inc., 71 Lab. Arb. (BNA) 54 (1978) (Cocalis, Arb.).
248. See Madison County (Ind.) Youth Ctr., 1997 WL 706680 (Feb. 6, 1997) (Brunner, Arb.); United Food & Commercial Workers Union, 1996 WL 578202 (Mar. 7, 1996) (Goldberg, Arb.); Department of Corrections, D.C., 1996 WL 658897 (May 19, 1996) (Rogers, Arb.); Fairfield City Sch. Dist., 107 Lab. Arb. (BNA) 669 (1996) (Duff, Arb.); Firestone Synthetic Rubber & Latex Co., 107 Lab. Arb. (BNA) 276 (1996) (Koenig, Arb.); County of Hennepin, Minn., 1995 WL 600954 (May 20, 1995) (Boganno, Arb.); Medical College of Ohio, 1995 WL 852272 (Dec. 1, 1995) (Duda, Jr., Arb.); Avis Rent a Car Shuttlers, 105 Lab. Arb. (BNA) 1057 (1995) (Wahl, Arb.); Michigan Dep't of Transp., 104 Lab. Arb. (BNA) 1196 (1995) (Kelman, Arb.); City of Troy, 1994 WL 853738 (May 13, 1994) (Daniel, Arb.); Cass County Bd. of Comm'rs, 1994 WL 854715 (May 31, 1994) (Fogelberg, Arb.); Independent Sch. Dist. 255, 21 LAIS 4012 (1994) (Daly, Arb.); Nob Hill Foods, 1993 WL 814033 (Sept. 9, 1993) (Silver, Arb.); King County Dep't of Adult Detention, 21 LAIS 2084 (1993) (McCaffree, Arb.); Flushing Community Sch., 100 Lab. Arb. (BNA) 444 (1992) (Daniel, Arb.); Ralphs Grocery Co., 100 Lab. Arb. (BNA) 63 (1992) (Kaufman, Arb.); Green Bay Packing Co., FMCS No. 90-25109, 1991 WL 716705 (June 13, 1991) (Fogelberg, Arb.); KIAM, 97 Lab. Arb. (BNA) 617 (1991) (Bard, Arb.); Dow Chem. Co., 95 Lab. Arb. (BNA) 510 (1990) (Sartain, Arb.); Honeywell, Inc., 95 Lab. Arb. (BNA) 1097 (1990) (Gallagher, Arb.); National Oats Co., Inc., 17 LAIS 3765 (1989) (Smith, Arb.); Ohio Dep't of Transp., 90 Lab. Arb. (BNA) 783 (1988) (Duda, Jr., Arb.); Washoe County Sherrif's Deputies Ass'n, 88-2 Arb. ¶ 8415 (1988) (Staudohar, Arb.); County of Ramsey, 86 Lab. Arb. (BNA) 249 (1986) (Gallagher, Arb.); Sugardale Foods, Inc., 86 Lab. Arb. (BNA) 1017 (1986) (Duda, Jr., Arb.); Greyhound Lines, Inc., 13 LAIS 3630 (1985) (Kaufman, Arb.); Hyatt Hotels Palo Alto, 85 Lab. Arb. (BNA) 11 (1985) (Oestreich, Arb.); David R. Webb Co., 84-1 Arb. ¶ 8290 (1984) (Kossoff, Arb.).
249. As previously noted, the employer's action must be "reasonably calculated to end the harassment," and the lack of discipline may lead to a finding that the action was not reasonable. See Intlekofer v. Turnage, 973 F.2d 773, 778 (9th Cir. 1992) (citing Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983)). In Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991), for example, the employer's ultimate decision to settle the grievance and have a six-month separation and cooling-off period was deemed insufficient because there was no discipline of the harasser. See id. at 881-83.
250. To the contrary, where courts address the issue of discipline, they do so for the purpose of determining whether there was enough discipline. See Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994). In reversing a summary judgment for the defendant, the Ninth Circuit noted that the delayed discharge of the harasser was not prompt and appropriate action which would relieve the employer of liability. See id. at 1464. Rather, the court wondered why the employer had not fired the harasser "outright and early on." Id. 247. The sixth and seventh factors identified by Arbitrator Daugherty in Enterprise Wire Co., 46 Lab. Arb. (BNA) 359, 362 (1966) (Daugherty, Arb.), as relevant to a determination of just cause pertain to the reasonableness of the penalty, even in the absence of a progressive discipline requirement. See Hyatt Hotels Palo Alto, 85 Lab. Arb. (BNA) 11 (1985) (Oestreich, Arb.) (reducing a discharge penalty to a fifteen day suspension without pay). In reducing a discharge, Arbitrator Oestreich stated that, "[o]ne of the underlying philosophies of progressive discipline is that the purpose of the disciplinary action is rehabilitation." Id. at 15.
251. In upholding an arbitrators' reinstatement of an employee dismissed for sexual harassment, the court in Communications Workers v. Bell Atlantic-West Virginia, Inc., 27 F. Supp. 2d 66 (D.D.C. 1998), addressed the dilemma of apparent conflicts between Title VII and the just cause requirement of a collective bargaining agreement. Noting that the company knew of its Title VII obligations at the time the contract was negotiated, the court refused to read a more stringent requirement into the contract. That 1996 agreement established rights and obligations concerning the 'just cause' required to support the dismissal of a six-month employee, without any specific reference to the company's rights and obligations regarding the prevention of sexual harassment in the workplace. If the 'just cause' standard as embodied in the agreement fails to shield Bell Atlantic to its satisfaction from its future liabilities under Title VII, it is a dilemma of the company's own making. Id. at 71.
252. Even where the arbitrator recognized the difference, it usually did not influence the decision. See, e.g., Michigan Dep't of Transp., 104 Lab. Arb. (BNA) 1196, 1201 (1995) (Kelman, Arb.) (reducing a three-day suspension to a written warning in keeping with the contract's requirement for progressive discipline, despite the employer's fear that it would be sued by the victim); County of Ramsey, 86 Lab. Arb. (BNA) 249, 254 (1986) (Gallagher, Arb.) (reducing a discharge to a thirty-day suspension because penalty was too severe for the conduct and employer's fear of liability did not matter).
253. See supra note 206 and accompanying text.
254. In Alaska, 84 Lab. Arb. (BNA) 897, 900 (1985) (Krebs, Arb.), the arbitrator upheld a five-day suspension, noting that the grievant would not need a warning to know that breast grabbing could lead to discipline.
255. For example, in Delta Beverage Group, Inc., 1995 WL 707557, at *15 (June 12, 1995) (Singer, Arb.), a discharge was reversed because the employer did not distribute its sexual harassment policy until after the incident upon which the discharge took place.
256. A frequent problem was that the policy was too vague, or the conduct was innocuous so as not to fit clearly within the policy. In American Mirrex Corp., 1992 WL 698140 (Feb. 5, 1992) (Edgett, Arb.), the grievant's conduct of walking around with his pants noticeably below his waist was held to be sexual harassment, but his discharge was reduced because the grievant had not received a prior warning. In KIAM, 97 Lab. Arb. (BNA) 617, 630 (1991) (Bard, Arb.), the arbitrator similarly reduced the discharge of the grievant, because the policy was vague, and it was not clear whether the grievant was committing harassment or simply trying to date the victim. In RMS Technologies, 94 Lab. Arb. (BNA) 297, 300-02 (1990) (Nicholas, Arb.), the arbitrator found the policy too vague, and also raised First Amendment questions regarding the conduct (bringing in a magazine) with which grievant was charged.
257. Compare Davis v. Tri-State Mack Distribs., Inc., 981 F.2d 340, 343-44 (8th Cir. 1992) (finding that warning the harasser of potential future discharge was an insufficient token effort and criticizing the employer for not having a sexual harassment policy), with Knabe v. Boury Corp., 114 F.3d 407, 413-14 (3d Cir. 1997) (holding that a non-disciplinary conversation which warned of the further consequences of harassment was sufficient where the harassment stopped and where the company had an open door policy on sexual harassment).
258. The court in Davis v. Tri-State Mack Distributors noted, "Although we recognize that the 'mere existence of a grievance procedure and a policy against discrimination,' does not necessarily 'insulate [an employer] from liability[,]' if Tri-State had had an effective sexual harassment policy in place, the results of this case may have been different." 981 F.2d at 344 (citations omitted).
259. As noted, conduct must be sufficiently severe or pervasive to rise to the level of actionable sexual harassment. Employers and employees alike may be quick to recognize severe conduct as sexual harassment. They may be less likely to recognize the potential illegal status of lesser conduct, which is also legal sexual harassment if it occurs with sufficient frequency to be considered pervasive. Notice that this type of conduct is grounds for discipline even before it rises to that level of pervasiveness. If the employee waits until the activity becomes pervasive enough to be considered legal sexual harassment, it may well find itself simultaneously liable, since that same pervasiveness may provide the victim with a basis for arguing that the conduct was public and ongoing, and thus the employer "should have known" about it and taken corrective action.
260. In Prudential Insurance Co. of America, 1993 WL 801372 (Nov. 16, 1993) (Heinsz, Chairman), the employer had a sexual harassment policy that parroted in large part the EEOC guidelines. The grievant received a warning letter after engaging a female co-worker in conversation that she considered sexual in nature. See id. at *3. In ordering a warning letter rescinded and allowing no penalty, the arbitrator noted that while the company was free to implement rules more stringent than Title VII, it had not clearly done so. See id. at *7. "The problem lies in its failure to put its employees, including Grievant, on sufficient notice that the kind of acts charged to Grievant is within the scope of the conduct which is not tolerated under its sexual harassment policy." Id. at *8; see also KIAM, 97 Lab. Arb. at 625-30 (reducing a discharge to a written warning because, inter alia, the sexual harassment policy was vague, and providing a thorough discussion on the relationship between Title VII and the arbitrator's role).
261. Prudential Insurance, 1993 WL 801372, at *8, is an example of just such a problem. See also note 87 and accompanying text (discussing the range of perspectives used to evaluate conduct in sexual harassment situations).
262. This is particularly a problem when the penalty assessed is discharge. For example, National Oats Co., Inc., 90-1 Arb. ¶ 8257 (1989) (Smith, Arb.); Vons Grocery, 88-2 Arb. ¶ 8611 (1987) (Prihar, Arb.); Boys Markets, Inc., 88 Lab. Arb. (BNA) 1304 (1987) (Wilmoth, Arb.); Sugardale Foods, Inc., 86 Lab. Arb. (BNA) 1017 (1986) (Duda, Arb.); and David R. Webb Co., 84-1 Arb. ¶ 8290 (1984) (Kossoff, Arb.), all involved discharges reduced to lesser penalties because the policies at issue failed to specify sexual harassment as being subject to summary discharge.
263. In Ralphs Grocery Co., 100 Lab. Arb. (BNA) 63 (1992) (Kaufman, Arb.), the sexual harassment policy authorized penalties up to discharge. In reducing a discharge for explicit verbal harassment, the arbitrator noted that while the policy authorized discharge, it did not call for discharge in every instance. See id. at 66.
264. In addition to the obvious and substantial legal costs directly attributed to sexual harassment, employers suffer losses due to lost productivity and similar issues. One estimate is that sexual harassment costs for a Fortune 500 company are approximately $6.7 million annually, in the form of reduced productivity, absenteeism, employee turnover, and the use of internal complaint processes. Carrie A. Bond, Note, Shattering the Myth: Mediating Sexual Harassment Disputes in the Workplace, 65 Fordham L. Rev. 2489, 2499-500 (1997).
265. Employers are free to institute reasonable work rules unilaterally, so long as they are not inconsistent with law or the collective bargaining agreement. See Elkouri & Elkouri, supra note 188, at 764. Rules banning sexual harassment, or even conduct which is arguably "only" a precursor to sexual harassment, cannot be said to conflict with the law. Furthermore, collective bargaining agreements routinely contain anti-discrimination language.
266. In Cincinnati Cleaning & Finishing Machinery Co., 73-2 Arb. ¶ 8397 (1973) (Chalfie, Arb.), the arbitrator upheld the discharge of a grievant who rubbed the sides and patted the buttocks of two female co-workers - whom the arbitrator referred to as "girls" - on the ground of immoral conduct.
267. 58 Lab. Arb. (BNA) 1139, 1142 (1972) (Hon, Arb.).
268. See Coca-Cola Bottling Co., 106 Lab. Arb. (BNA) 776 (1996) (Borland, Arb.) (taking into consideration the all-male environment in deciding to reduce a discharge); Metropolitan Transit Comm'n, 106 Lab. Arb. (BNA) 360, 364 (1996) (Imes, Arb.) (holding a supervisor's participation as sexual horseplay and a reason to reduce discharge); City of Minneapolis, 101 Lab. Arb. (BNA) 1006, 1008 (1993) (Daly, Arb.) (noting that all employees at the 911 facility cursed to relieve stress and, thus, deciding to reverse suspension and allow no penalty).
269. 71 Lab. Arb. (BNA) 54 (1978) (Cocalis, Arb.).
270. Id. at 55.
271. Id. at 55-56. In that instance, immoral conduct was a dischargable offense under the contract, so the interpretation governed whether the discharge could stand.
272. For example, in Ellison v. Brady, the harassment consisted of sending "love letters," which, although the sender "could be portrayed as a modern-day Cyrano de Bergerac," were contextually frightening and threatening. 924 F.2d 872, 880 (9th Cir. 1991).
273. This is because a victim's environment can continue to be hostile, even in the absence of continued action, if the victim is unaware that the harasser is not going to act again. At least for some length of time, the atmosphere will continue to be poisoned by the fear that the abusive conduct will recur.
274. The point is that the need to reassure the victim - which should be considered in sexual harassment cases - is not a tenet of arbitration. Thus, the arbitrator need not consider that factor when evaluating the propriety of the discipline imposed by the employer. See supra note 205 and accompanying text.
275. 86 Lab. Arb. (BNA) 249 (1986) (Gallagher, Arb.).
276. See id. at 253-54.
277. See id. at 253.
278. See supra Table 2.
279. In Medical College of Ohio, FMCS No. 95-06172, 1995 WL 852272, at *3-4 (Dec. 1, 1995) (Duda, Arb.), the arbitrator reduced a discharge of grievant for touching the buttocks of a co-worker and simulated oral sex to a sixty-day suspension, on the grounds that the company's failure to discipline him for earlier less serious offenses may have lulled the grievant into committing this more serious offense. Prior lax enforcement is also a basis that arbitrators use to reduce or disallow penalties. See In re Coca-Cola Bottling Co., 106 Lab. Arb. (BNA) 776, 780 (1996) (Borland, Arb.).
280. See Elkouri & Elkouri, supra note 188, at 919; see also Weber Aircraft, 86-1 Arb. ¶ 8200 (1985) (Dunn, Arb.) (noting that grievant was suspended before the company obtained his version of events and that his later discharge was tainted even though he had a prior record of similar behavior).
281. See supra Part III.B.2.a.
282. Title VII does not impose any substantive responsibilities on employers. Rather, it prohibits the employer from making distinctions based on certain bases, including sex. 42 U.S.C. § 2000e-2(a) (1995). Thus, it does not require an investigation.
283. While Title VII does not require that an employer discharge the harasser in order to avoid liability in every instance, see Waymire v. Harris County, 86 F.3d 424, 429 (5th Cir. 1996), in some instances failure to discharge does lead to liability. See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994). Moreover, where the mere presence of the harasser perpetuates the hostile environment, discharge may also be required. See Ellison v. Brady, 924 F.2d 872, 883 (9th Cir. 1991) (noting that "[t]o avoid liability under Title VII for failing to remedy a hostile environment, employers may even have to remove employees from the workplace if their mere presence would render the working environment hostile").
284. See Yates v. Avco Corp., 819 F.2d 630, 635 (6th Cir. 1987) (relying in part on problems in the investigation as a basis for finding the employer liable for sexual harassment).
285. See Firestone Rubber & Latex Co., 107 Lab. Arb. (BNA) 276, 283-84 (1996) (Koenig, Arb.) (reducing discharge to long-term suspension in part because the employer did not fairly and objectively investigate the employee accused of racial, ethnic, and sexual harassment; the employer did not consider the problems that prompted co-workers' complaints or the veracity of those complaints, nor did it seek verification from grievant that he actually committed the complained of actions); Earle M. Jorgensen Steel & Aluminum Co., FMCS No. 93-12897, 1994 WL 854694, at *13 (Apr. 5, 1994) (Goldstein, Arb.) (finding no just cause in part due to a poor investigation where the employer first made only general and discreet inquiries and later asked leading questions).
286. See supra Part III.B.2.a.
287. See Elkouri & Elkouri, supra note 188, at 918-19 (explaining the due process and procedural requirements for disciplinary actions taken by employers).
288. For a discussion on the issue of confidentiality, see Whitaker v. Carney, 778 F.2d 216 (5th Cir. 1985). In response to a former city employee's mandamus action to enforce a request for access to sexual harassment complaints filed with the city against him by certain female employees, the court concluded that there was no support for the proposition that Title VII's regulations required employers to maintain a confidential grievance procedure. See id. at 220-21. For a discussion on the issue of a meaningful opportunity to answer charges, see Delta Beverage Group, Inc., 1995 WL 707557, at *15 (June 12, 1995) (Singer, Arb.) (reversing a discharge because grievant was not interviewed before the discharge), and Pennyrile Rural Electric Cooperative Corp., FMCS No. 93-10232, 1993 WL 788392, at *14 (Aug. 24, 1993) (Wren, Arb.) (reversing a discharge because employer did not conduct any investigation and took complaint at face value).
289. In some instances, the employer may receive an "off the record" complaint. See supra notes 173-74 and accompanying text. Although unofficial, the complaint creates actual employer knowledge. If the allegation includes harassing conduct towards others in addition to the complainant, the employer may nonetheless have to investigate, and again, may not do so confidentially, without offending the just cause requirement for a fair and impartial investigation. See Great Midwest Mining Corp., Int'l Bd. of Teamsters, Local 541, 82 Lab. Arb. (BNA) 52, 55 (1984) (Mikrut, Arb.).
290. See 3 Employment Discrimination, supra note 2, § 46.07[5][b], at 46-108.
291. In Yates v. Avco Corp., 819 F.2d 630, 635 (6th Cir. 1987), for example, the court was concerned with the employer's having placed the victim on continuing sick leave, as opposed to administrative leave, a practice which left the victim with no record of the real reason for the leave and in fear that she was endangering her position as an employee. The need to protect the victim's employment status, even during the investigation, is consistent with the EEOC's position that an employer's corrective action is appropriate when it "fully remedie[s] the conduct without adversely affecting the terms or conditions of the charging party's employment in some manner (for example, by requiring the charging party to work . . . in a less desirable location)." EEOC Compliance Manual (CCH) § 615.4(a)(9)(iii), at 3213 (1991).
292. See Kidde, Inc., 86 Lab. Arb. (BNA) 681, 682 (1985) (Dunn, Arb.).
293. See Elkouri & Elkouri, supra note 188, at 905. In Indiana Michigan Power Co., 103 Lab. Arb. (BNA) 248 (1994) (Alexander, Arb.), the arbitrator described the employer's burden for discharging an employee as having to prove: (1) notice of the rule; (2) notice of the consequences; (3) violation of the rule; and (4) that progressive discipline is futile. See id. at 255.
294. See King Soopers, Inc., 86 Lab. Arb. (BNA) 254, 262 (1985) (Sass, Arb.). Individuals discharged for such reasons are assumed to have little chance of obtaining similar employment. Indeed, plaintiff tort theories of negligent hiring, sometimes coupled with sexual harassment cases, add credence to this assumption.
295. See Madison County (Ind.) Youth Ctr., 1997 WL 706680, at *7 (Feb. 6, 1997) (Brunner, Arb.); Kroger Co., FMCS No. 96-21600-8, 1997 WL 585693, at *6 (May 16, 1997) (Nicholas, Arb.); Hughes Family Mkts., Inc., 107 Lab. Arb. (BNA) 331, 333 (1996) (Prayzich, Arb.); George Koch Sons, Inc., 102 Lab. Arb. (BNA) 737, 742 (1994) (Brunner, Arb.).
296. All but one of the arbitrators using this standard were discharges of the case. In some instances the standard was used in tandem with the level of penalty. For example, an arbitrator might hold an employee to the beyond a reasonable doubt standard for discharge for sexual harassment but to the preponderance of the evidence standard for a suspension. Under this formulation, not meeting the proof standard will not necessarily result in no penalty, but most likely, a reduced penalty. Thus, in Benzie County Central Schools, 1995 WL 852208, at *18 (Jan. 16, 1995) (Borland, Arb.), a discharge was reduced to a long-term suspension (reinstatement with no back pay) because sexual harassment was not proven beyond a reasonable doubt. Although the grievant, a bus driver, had engaged in inappropriate behavior with a student, the student did not view the conduct as harassment. The employer thus could not prove sexual harassment beyond a reasonable doubt. See id. at *17.
297. See Birmingham-Jefferson County Transit Auth., FMCS No. 96-11046, 1996 WL 901984 (July 2, 1996) (Giblin, Arb.); City of Flint, 104 Lab. Arb. (BNA) 124 (1995) (House, Arb.); DC Pub. Schs., 105 Lab. Arb. (BNA) 1037 (1995) (Johnson, Arb.); Potlatch Corp., 104 Lab. Arb. (BNA) 691 (1995) (Moore, Arb.); USS, Div. of USX Corp., 1994 WL 853785 (Aug. 5, 1994) (Dybeck, Arb.); Independent Sch. Dist. 255, 102 Lab. Arb. (BNA) 993 (1994) (Daly, Arb.); Superior Coffee & Foods, 103 Lab. Arb. (BNA) 609 (1994) (Alleyne, Arb.); Georgia Pac. Corp., FMCS No. 92-20643, 1993 WL 788325 (Jan. 28, 1993) (Nicholas, Jr., Arb.); The Clorox Co., FMCS No. 93-15077, 1993 WL 800921 (Aug. 4, 1993) (Nicholas, Jr., Arb.); U.P.S., FMCS No. 93-04244, 1993 WL 801403 (Nov. 18, 1993) (Nicholas, Jr., Arb.); Vermont State College, 100 Lab. Arb. (BNA) 1193 (1993) (McHugh, Chairman); University of Mich., 1992 WL 717113 (July 20, 1992) (House, Arb.); Dayton Newspapers, 100 Lab. Arb. (BNA) 48 (1992) (Strasshofer, Arb.); Clover Park Sch. Dist. 89, 89 Lab. Arb. (BNA) 76 (1987) (Boedecker, Arb.); Kraft, Inc., Sealtest Foods, 89 Lab. Arb. (BNA) 27 (1987) (Goldstein, Arb.); Akron Metro. Regional Transp. Auth., 13 LAIS 2122 (1986) (Strasshofer, Jr., Arb.); Veterans Admin. Med. Ctr., 87 Lab. Arb. (BNA) 405 (1986) (Yarowsky, Arb.); Houston Lighting & Power, 80 Lab. Arb. (BNA) 941 (1983) (Bailey, Arb.); United States Army Signal, 78 Lab. Arb. (BNA) 120 (1982) (Hall, Arb.).
298. See Schuylkill Metals, Inc., 1997 WL 585656 (Apr. 18, 1997) (Nicholas, Jr., Arb.); The Kroger Co., FMCS No. 96-21600-8, 1997 WL 585693 (May 16, 1997) (Nicholas, Jr., Arb.); Metropolitan Council Trans. Operations, 1996 WL 881639 (Feb. 5, 1996) (Berquist, Arb.); Hoechst Celanese Corp., 97-1 Arb. ¶ 3176 (1996) (Nolan, Arb.); Veterans Admin. Med. Hosp., 95-2 Arb. ¶ 5402 (1995) (Nicholas, Jr., Arb.); Vista Chem., 104 Lab. Arb. (BNA) 819 (1995) (Nicholas, Jr., Arb.); General Elec. Co., FMCS No. 93-09863, 1994 WL 837646 (Jan. 5, 1994) (Millious, Arb.); City of Troy, 1994 WL 853738 (May 13, 1994) (Daniel, Arb.); DOA, Sixth Infantry Div., 94-1 Arb. ¶ 4170 (1994) (Landau, Arb.); Ecolab, Inc., 1993 WL 788049 (June 9, 1993) (Goldstein, Arb.); Nestle Beverage Co., FMCS No. 93-14178, 1993 WL 788801 (Dec. 6, 1993) (Traynor, Arb.); Vision-Ease, BMC Indus., FMCS No. 93-18058, 1993 WL 801382 (Dec. 31, 1993) (Mathews, Arb.); Chief Judge, 17th Judicial Circ., 94-1 Arb. ¶ 4126 (1993) (Nathan, Arb.); Duke Univ., 100 Lab. Arb. (BNA) 316 (1993) (Hooper, Arb.); Ferro Corp. , 93-2 Arb.¶ 3501 (1993) (Curry, Arb.); Michigan Dep't of Soc. Servs., 93-2 Arb. ¶ 3454 (1993) (Girolamo, Arb.); Quaker Oats Co., 95-1 Arb. ¶ 5038 (1993) (Berstein, Arb.); Sullivan's New Mkt., 1993 WL 797829 (1993) (Berquist, Arb.); City of Riviera Beach, FMCS No. 91-28226, 1992 WL 732099 (Mar. 26, 1992) (Mayer, Arb.); Independent Sch. Dist. No. 196, 1992 WL 724758 (Oct. 27, 1992) (Berquist, Arb.); Central Mich. Univ., 99 Lab. Arb. (BNA)134 (1992) (McDonald, Arb.); Flushing Community Sch., 100 Lab. Arb. (BNA) 444 (1992) (Daniel, Arb.); Green Bay Packing Co., FMCS No. 90-25109, 1991 WL 716705 (June 3, 1991) (Fogelberg, Arb.); Colonial Sch. Dist., 96 Lab. Arb. (BNA) 1122 (1991) (DiLauro, Arb.); Shell Pipe Line, 97 Lab. Arb. (BNA) 957 (1991) (Baroni, Arb.); Port Huron Area Sch. Dist., 80-1 Arb. ¶ 8174 (1990) (Lipson, Arb.); GTE Fla., 92 Lab. Arb. (BNA) 1090 (1989) (Cohen, Arb.); Ohio Dep't of Transp., 90 Lab. Arb. (BNA) 783 (1988) (Duda, Jr., Arb.); Sugardale Foods, Inc., 86 Lab. Arb. (BNA) 1017 (1986) (Duda, Jr., Arb.); Tampa Elec. Co., 88 Lab. Arb. (BNA) 791 (1986) (Vause, Chairman); Veterans Admin. Med. Ctr., 82 Lab. Arb. (BNA) 25 (1984) (Dallas, Arb.); Care Inns, Inc., 81 Lab. Arb. (BNA) 687 (1983) (Taylor, Arb.); University of Mo., 78 Lab. Arb. (BNA) 417 (1982) (Yarowsky, Arb.).
299. See Benzie County Cent. Schs., 1995 WL 852208 (Jan. 16, 1995) (Borland, Arb.); Beloit Manhatten, 1991 WL 693196 (Sept. 4, 1991) (DiLauro, Arb.); King Soopers, Inc., 86 Lab. Arb. (BNA) 254 (1985) (Sass, Arb.); Town of Winchester, 9 LAIS 2002 (1981) (Sacks, Arb.); Youngstown Hosp. Ass'n, 76-2 Arb. ¶ 8409 (1976) (Laybourne, Arb.); Cincinnati Cleaning & Finishing Machinery Co., 73-2 Arb.¶ 8397 (1973) (Chalfie, Arb.); South Cent. Bell Tel. Co., 71-1 Arb.¶ 8297 (1971) (Ray, Arb.).
300. See International Mill Serv., 104 Lab. Arb. (BNA) 779 (1995) (Marino, Arb.); Pennyrile Rural Elec. Coop. Corp., FMCS No. 93-10232, 1993 WL 788392 (Aug. 24, 1993) (Wren, Arb.); Defense Logistics Agency, 91 Lab. Arb. (BNA) 1391 (1989) (Duda, Jr., Arb.).
301. See, e.g., McCue v. Department of Human Resources, Nos. 96-3412, 97-3004, 97-3238, 1999 WL 5064, at *4 (10th Cir. 1999) (applying a preponderance standard).
302. See Federal Bureau of Prisons, FMCS No. 94-20428, 1995 WL 793810, at *10-11 (Jan. 16, 1995) (Hoh, Arb.) (reducing a discharge to thirty-day suspension because the employer condoned raucous behavior for years); Earle M. Jorgensen Steel & Aluminum Co., FMCS No. 93-12897, 1994 WL 854694, at *19 (Apr. 5, 1994) (Goldstein, Arb.) (reversing a discharge because employer tolerated considerable shop talk and horseplay); City of Minneapolis, 101 Lab. Arb. (BNA) 1006, 1008-09 (1993) (Daly, Arb.) (reversing a two-day suspension because the employer was lax in enforcement). Even discharge for severe conduct can be reduced on this basis. In King Soopers Inc., 101 Lab. Arb. (BNA) 107, 112-13 (1993) (Snider, Arb.), a bargaining unit employee's discharge for repeated instances of patting the buttocks of one co-worker and at least one instance of touching the breast of another co-worker was reduced to a twenty-day suspension because the company had treated management employees with similar offenses less severely.
303. See supra Part III.B.1.
304. See supra Part II.B.4.
305. See supra notes 175-77 and accompanying text.
306. See, e.g., Fairfield City Sch. Dist., 107 Lab. Arb. (BNA) 669, 672 (1996) (Duff, Arb.) (reducing a one-day suspension to a written warning); Firestone Synthetic Rubber & Latex Co., 107 Lab. Arb. (BNA) 276, 284 (1996) (Koenig, Arb.) (reducing discharge to a long-term suspension); City of Troy, 1994 WL 853738, at *12 (May 13, 1994) (Daniel, Arb.) (reducing 10 hours of lost holiday pay to a written reprimand because a warning was needed before a suspension); Nob Hill Foods, 1993 WL 814033, at *9 (Sept. 9, 1993) (Silver, Arb.) (reducing a discharge to a written warning). For a discussion on the principle of "progressive discipline," see supra note 188 and accompanying text.
307. See, e.g., West Virginia Univ. Hosp., Inc., 89-2 Arb. ¶ 8435 (1988) (Duff, Arb.) (ruling that the discharge was not warranted in light of grievant's good record).
308. See, e.g., Dayton Power & Light Co., 80 Lab. Arb. (BNA) 19, 21-22 (1982) (Heinsz, Arb.) (reducing a discharge for a breast pinching incident in light of long service and an unblemished record).
309. See, e.g., George Koch Sons, Inc., 102 Lab. Arb. (BNA) 737, 741-43 (1994) (Brunner, Arb.) (sustaining grievant's discharge despite recognizing that the discharge was economic capital punishment and the grievant had a thirty-seven-year unblemished record).
310. City of Key West, 106 Lab. Arb. (BNA) 652 (1996) (Wolfson, Arb.).
311. This is particularly true now that the Supreme Court has established vicarious liability for sexual harassment by supervisors. See supra notes 126-56 and accompanying text (discussing Faragher and Burlington).
312. See, e.g., City of Key West, 106 Lab. Arb. (BNA) 652, 654 (1996) (Wolfson, Arb.) (noting that demotions must be based on performance, not misconduct). Similar results have occurred when the employer tried to place an employee on probation for harassment. See Brevard County Police Benevolent Ass'n, Inc., FMCS No. 95-02404, 1995 WL 791624, at *5 (May 8, 1995) (Wolfson, Arb.).
313. See W.R. Grace & Co. v. Local 759, Int'l Union of the United Rubber Workers, 461 U.S. 757 (1983). The public policy at issue "must be well defined and dominant, and is to be ascertained 'by reference to the laws and legal precedents and not from general considerations of supposed public interest.'" Id. at 766 (quoting Muschany v. United States, 324 U.S. 49, 66 (1945)). Therefore, arbitral decisions in contravention of some broad notion of the general public interest will not be disturbed. Moreover, in determining whether the public policy exception applies, the court may not second-guess the arbitrator's fact-finding and must refrain from drawing factual inferences not made by the arbitrator.
314. Court reviews reflect a "preference for arbitration" and "a desire to promote the benefits of labor arbitration." Exxon Shipping Co. v. Exxon Seamen's Union, 993 F.2d 357, 360 (3d Cir. 1993). Thus, the arbitrator's decision must be enforced if it was based on an arguable interpretation or application of the collective bargaining agreement, and may be vacated only if it lacks any support in the record. The Supreme Court has stated, "[a]s long as the arbitrator's award 'draws its essence from the collective bargaining agreement,'" a court is bound to enforce the award and is not entitled to review the merits of the contract dispute. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36 (1987) (quoting United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960)).
315. See Stephen Buehrer, A Clash of the Titans: Judical Deference to Arbitration and the Public Policy Exception in the Context of Sexual Harassment, 6 Am. U. J. Gender & L. 265, 287-89 (1998) (contrasting the restrictive and expansive interpretations of the public policy exception that have developed after the Supreme Court's decision in United Paperworks, 484 U.S. at 29).
316. See Jeffrey Sarles, The Case of the Missing Woman: Sexual Harassment and Judicial Review of Arbitration Awards, 17 Harv. Women's L.J. 17, 17-18 (1994) (arguing that national labor public policy includes the prohibition of workplace sexual harassment and suggesting the means by which courts could ensure the recognition of this policy by arbitrators); Chris Baker, Comment, Sexual Harassment v. Labor Arbitration: Does Reinstating Sexual Harassers Violate Public Policy?, 61 U. Cin. L. Rev. 1361, 1370-74 (1993) (reviewing laws and legal precedents that establish a "well defined and dominant" public policy against sexual harassment).
317. See Jeffrey Sarles, The Case of the Missing Woman: Sexual Harassment and Judicial Review of Arbitration Awards, 17 Harv. Women's L.J. 17, 17-18 (1994) (arguing that national labor public policy includes the prohibition of workplace sexual harassment and suggesting the means by which courts could ensure the recognition of this policy by arbitrators); Chris Baker, Comment, Sexual Harassment v. Labor Arbitration: Does Reinstating Sexual Harassers Violate Public Policy?, 61 U. Cin. L. Rev. 1361, 1370-74 (1993) (reviewing laws and legal precedents that establish a "well defined and dominant" public policy against sexual harassment).
318. There were no private sector cases relating to arbitrators' reducing penalties for sexual harassment other than discharge. One federal sector case, King v. Frazier, 77 F.3d 1361, 1362 (Fed. Cir. 1996), related to an arbitrator's reversal of a sixty-day suspension. Its holding, however, turned on an application of 5 U.S.C. § 7513(a), the standard for discipline in the federal service. Id. at 1363. Thus, the case is not applicable to the principles discussed here.
319. Compare Chrysler Motors Corp. v. International Union, Allied Indus. Workers, 959 F.2d 685 (7th Cir. 1992) (upholding the arbitrator's decision), and Communication Workers v. Southeastern Elec. Coop., 882 F.2d 467 (10th Cir. 1989) (same), with Stroehmann Bakeries, Inc. v. Local 776, International Bd. of Teamsters, 969 F.2d 1436 (3d Cir. 1992) (vacating the arbitrator's decision), and Newsday, Inc. v. Long Island Typographical Union, 915 F.2d 840 (2d Cir. 1990) (same).
320. Chrysler Motors, 959 F.2d at 687.
321. For example, in Chrysler Motors, the harasser grabbed a co-worker's breasts and announced "Yup, they're real." 959 F.2d at 686 n.1. In Communication Workers, the employee sexually assaulted a customer in her house. See 882 F.2d at 468. This might not be so in other cases: for example, where the conduct at issue is less egregious, or where the employee's conduct might be found to constitute harassment in one circuit, under a reasonable woman standard, but not by another circuit using a reasonable person standard.
322. See Chrysler Motors, 959 F.2d at 688-89; Communication Workers, 882 F.2d at 468.
323. See supra Part III.B.2.b.
324. See Terex Corp. v. International Union, U.A.W., No. CIV.A.2:97CV243-D-B., 1998 WL 433948, at *7-9 (N.D. Miss. June 17, 1998) (upholding an arbitrator's reduction of a discharge penalty and noting that there is no Title VII requirement for discharge).
325. W.R. Grace & Co. v. Local Union 759, Int'l Union of the United Rubber Workers, 461 U.S. 757, 766 (1983) (quoting Muschany v. United States, 324 U.S. 49, 66 (1945)).
326. 969 F.2d 1436 (3d Cir. 1992).
327. See id. at 1438. A similar result was reached by a district court considering the propriety of the arbitrator's award vacating a discharge on procedural grounds. See United Transp. Union v. Burlington N. R.R., 864 F. Supp. 138, 142 (D. Or. 1994) (vacating awards which reinstated an alleged sexual harasser because it violated public policy).
328. 915 F.2d 840 (2d Cir. 1990).
329. See, e.g., Consolidated Edison v. Utility Workers' Union, No. 95 CIV. 1672 JGK., 1996 WL 374143, at *5 (S.D.N.Y. July 3, 1996) (vacating an arbitrator's award which reinstated an employee who was discharged for sexually harassing coworkers); United Transp., 864 F. Supp. at 142 (finding that a referee's award required review because it reinstated an employee who was discharged for sexual harassment "contrary to well-defined and explicit public policy").
330. 915 F.2d at 843.
331. In fact, the grievant, Waters, had originally been discharged by Newsday for the first incident, but Newsday voluntarily reinstated him, converting the discharge to a suspension. See id. at 842. Waters grieved the suspension, but this was upheld and Waters was specifically warned about sexual harassment. See id. 328. See id. 329. Id. at 843.
332. See id. at 845.
333. See id.
334. Similar results were reached in two recent unreported cases. In Consolidated Edison v. Utility Workers' Union, No. 95 CIV. 1672 JGK., 1996 WL 374143, at *5 (S.D.N.Y. July 3, 1996), the court, following Newsday, overturned an arbitrator's reinstatement of a second offender. The court specifically noted that, "[t]his is not to say that an arbitration award of reinstatement after a discharge for sexual misconduct must always be vacated as contrary to public policy," and it continued by noting that discharge might not be appropriate in the absence of an earlier discipline. Id. at *4. It obviously would also not be appropriate to vacate an award of reinstatement because of failure of proof or similar concerns. See Terex Corp. v. International U.A.W., No. CIV.A. 2:97CV243-D-B., 1998 WL 433948, at *9 (N.D. Miss. June 17, 1998) (upholding arbitrator's decision to reinstate the grievant upon concluding that the complained of conduct did not constitute sexual harassment). Of course, the arbitrator's failure to see certain conduct as sexual harassment is tied to the difficultly of recognizing sexual harassment. See supra Part II.
335. Employees have been successful in having their penalties for sexual harassment modified or overturned at rates comparable to other types of misconduct. See generally Elkouri & Elkouri, supra note 188, at 945-68 (reporting statistics). In fact, it appears that the employer's choice of discipline for sexual harassment is being upheld at a higher rate than other types of discipline, except those associated with dishonesty. Nonetheless, since failure to respond "appropriately" where allegations of sexual harassment are involved could lead to employer liability, there is a Hobsons' nature to the choice employers face here when compared to other disciplinary situations.
336. See supra Table 1 (showing that only 51% of arbitrations upheld the penalty assessed by the employer).
337. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (stating that all the circumstances surrounding the conduct must be considered to determine whether it constituted sexual harassment).
338. Lack of notice as to what constitutes the charged misconduct is a factor arbitrators consider when determining whether to mitigate discipline. See supra Part IV.C.3.a.
339. The lack of a specific definition of harassment is difficult for victims in the sense that many of them, particularly those working in a male-dominated setting, may well "go along to get along." If they believe that the offensive conduct is part of the culture of the workplace, they may be less likely to complain because they want to fit in. A policy that states that "harassment" based on all the circumstances is prohibited does not help the victim because she is not likely to know what this means. Indeed, the courts cannot even agree on what it means. See supra Part II. Thus, absent overtly sexual behavior, the victim is likely to, and indeed must, tolerate the behavior, at least initially, because she is unlikely to know at the outset whether it will continue until it reaches the level of pervasiveness needed to constitute actionable harassment. Clear indications of specifically what is prohibited will help alleviate this problem for all involved.
340. "[E]mployers are not under a legal duty enforceable by suits under Title VII to purify the language of the workplace." Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1010 (7th Cir. 1994); see also Rabidue v. Osceola Refining Co., 805 F.2d 611, 620-21 (6th Cir. 1986) (noting that Title VII was not meant to change the rough language, sexual jokes, and conversations that abound in certain work environments).
341. See supra note 212 and accompanying text.
342. By "summary dismissal" I mean dismissal without progressive discipline. Obviously, summary dismissals must meet "industrial due process" standards.
343. One arbitrator explained: Offenses are of two general classes: (1) those extremely serious offenses such as stealing, striking a foreman, persistent refusal to obey a legitimate order, etc., which usually justify summary discharge without the necessity of prior warnings or attempts at corrective discipline; (2) those less serious infractions of plant rules or of proper conduct such as tardiness, absence without permission, careless workmanship, insolence, etc., which call not for discharge for the first offense (and usually not even for the second or third offense) but for some milder penalty aimed at correction. Huntington Chair Corp., 24 Lab. Arb. (BNA) 490, 491 (1955) (McCoy, Arb.).
344. This would occur, for example, if the harasser forced the victim to touch her or his breasts, genitals, buttocks, or crotch, as opposed to the harasser touching the victims body on those areas.
345. In Oncale v. Sundowner Offshore Services, Inc., however, the Supreme Court made clear that all such touching would not be considered sexual harassment and distinguished non-harassing touching, such as a football coach slapping the buttocks of his players, from a boss patting the buttocks of his secretary. 118 S. Ct. 998, 1003 (1998). Of course, these are extreme examples that are easy to discern. As I noted earlier, there will always be a few easy calls. Distinguishing the lanes of the superhighway in between, however, is not easy.
346. The scenario derives from Scott v. Sears, Roebuck & Co., 798 F.2d 210 (7th Cir. 1986), and is more representative of the dilemma employers face trying to determine what conduct would subject them to liability than the two examples cited by the Supreme Court in Oncale. See Oncale, 118 S. Ct. at 1002-03.
347. While the table of penalties should generally be enforced in any case of unwelcome conduct, a difficult situation exists where the conduct involves co-workers who were previously involved in a dating relationship. While unrequited physical or emotional attraction may indeed be the basis of a sexual harassment action when the victim never encouraged the alleged harasser - as indeed it was in Ellison - the same situation does not exist, at least initially, when the harasser's behavior was not only accepted in the past, but was also desired and encouraged. The employer should not automatically bear the burden of liability when such a relationship sours. Unless the alleged misconduct involved violent physical touching, the first step should be mediation or counseling, which would ensure that the complainant's position has been made clear to the harasser without unduly jeopardizing his work record based on either a mistake or personal animosity. In Intlekofer v. Turnage, 973 F.2d 773, 780 (9th Cir. 1992), the court found that the Veteran's Administration had not taken sufficient action to end harassment of the plaintiff by her former boyfriend because it never moved beyond informal counseling and attempts to separate them. In his dissent, Judge Wiggins observed: I do not, of course, maintain that sexual harassment can never occur after a failed relationship between employees. Rather, I believe that the relationship is a factor to be considered both in determining if there was in fact sexual harassment and in determining what should properly be done by an employer to remedy the situation. Id. at 785. Discipline for more serious conduct would be determined on the basis of the more serious conduct. Also, directed words in the absence of a former paramour situation would not lead to mediation. Former paramours, in my view, require special treatment because the employee engaging in a consensual on-the-job relationship has, in effect, introduced into the workplace an otherwise private matter.
348. For example, in General Electric Co., FMCS No. 93-09863, 1994 WL 837646 (Jan. 5, 1994) (Millious, Arb.), the arbitrator reduced the penalty in part because under the particular system at issue, only two reprimands during an employee's entire tenure resulted in instant discharge. Classification under such a system, therefore, may result in only more serious conduct being used as the basis for a reprimand. The point, however, is that all parties know in advance precisely what penalties will be administered for particular conduct.
349. In some instances the victim will not feel her complaint has been acted on because she is unaware of the consequences the harasser suffers. For example, if a harasser receives a written reprimand, the victim, because of privacy requirements, would not be notified of the action. However, if such terms are published and known to be enforced whenever an allegation is sustained, the victim would enjoy a certain amount of confidence concerning what has happened to the harasser - which would instill confidence that the harassment will not recur - the key to eliminating the victim's perception of hostility.
350. 78-2 Arb. ¶ 8293 (1978) (Weiss, Arb.).
351. See id. at 4406-07.
352. See supra note 11 and accompanying text.
353. See, e.g., USAF, 107 Lab. Arb. (BNA) 1089, 1090 (1997) (Stephens, Arb.) (stating the agency's position to substitute a more appropriate discipline for a grievant who had been found guilty of five separate offenses).
354. Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257, 2270 (1998).