I. Contextual Overview of Standards for Determining Employer Liability Under Title VII Prior to Faragher and Ellerth

In June of 1998, the U. S. Supreme Court issued companion landmark decisions in a concerted effort to clarify the "relevant standards of employer liability" for sexual harassment under Title VII. See, Burlington Industries, Inc., v. Ellerth, 524 U. S. 742 (1998); Faragher v. City of Boca Raton, 524 U. S. 775 (1998) (framing the question before the Court as requiring "identification of the circumstances under which an employer may be held liable . . . [under Title VII] for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination"). The Court issued parallel holdings answering that essential question. In so doing, the Court corrected the misapplication of agency principles as applied by the Eleventh Circuit Court of Appeals and other circuits in the years following Meritor Savings Bank v. Vinson, 477 U. S. 57 (1986).1

After the Meritor decision, the Eleventh Circuit Court of Appeals attempted to apply agency principles consistent with Supreme Court dictates. In so doing, the Eleventh Circuit ultimately concluded that no indirect liability attached to employers for supervisor harassment of a subordinate unless the claim contained a quid pro quo element. Indeed, it was the Eleventh Circuit’s misapplication of the agency principles articulated in Meritor that prompted the Supreme Court to revisit the issue by granting certiorari in Faragher v. City of Boca Raton, 111 F.3d 1530 (11th Cir. 1997). The body of case law evolved in the Eleventh Circuit after Meritor employed different analytical frameworks for quid pro quo cases as opposed to hostile environment sexual harassment cases. In quid pro quo cases, the Eleventh Circuit imposed a strict liability standard for employer liability, reasoning that "[w]hen a supervisor requires sexual favors as quid pro quo for job benefits, the supervisor, by definition, acts as the company." Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir. 1989). Conversely, in a "purely" hostile environment sexual harassment case, the corporate employer escaped liability unless it acted negligently (or intentionally) by failing to take prompt remedial action after receiving actual or constructive notice of the harassment. Id. The safe harbor afforded employers who took prompt and appropriate remedial action upon notice of harassment did not exist in quid pro quo or hybrid quid pro quo cases. See, e.g., Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1558-60 (1987). The Eleventh Circuit explained this analytical distinction by taking the approach that a supervisor’s harassing conduct was outside the scope of employment, consequently, indirect liability under traditional agency principles would not apply.

II. Brief Review of the Standards for Determining Employer Liability as Articulated by the U. S. Supreme Court in Faragher and Ellerth

The Supreme Court’s majority decision in Faragher2 answered two questions:

  1. whether the employer may be liable for Title VII hostile environment claims regardless of actual or constructive knowledge of the harassment; and
  2. whether, based on the facts, the employer knew or should have known of the hostile environment at Faragher’s worksite.

The Supreme Court’s majority decision in Ellerth3 resolved the following question: whether, under Title VII, an employee who refuses unwelcome sexual advances of a supervisor, but suffers no adverse employment consequences can recover against the corporate employer without showing the employer acted negligently or was otherwise at fault for the conduct.

As a threshold matter, the Supreme Court rejected the framework developed by the Eleventh and sister Circuits, expressly rejecting the lower courts’ categorization of claims (quid pro quo versus hostile environment) as controlling in a Title VII sexual harassment analysis. Moreover, the Supreme Court held that the Eleventh Circuit erred in declining to apply a vicarious liability theory to Faragher’s claims. The Supreme Court found that it "makes sense" to hold employers "vicariously liable under Title VII for some tortious conduct of a supervisor" when the conduct is "made possible by use of his supervisory authority [and] . . . the aided-by-agency principle of [Restatement of Agency] § 219(2)(d) provides an appropriate starting point for determining liability" for the type of harassment presented. Faragher at 805-07.

The Supreme Court’s construction of these agency principles, particularly its emphasis on the "aided in accomplishing the tort" theory, introduced a new centerpiece to the analysis of corporate liability for a supervisor’s misuse of authority. The Supreme Court painstakingly explained that the starting point for inquiry into employers liability for sexual harassment by a supervisor should not begin with the question, "was the harassment quid pro quo or hostile environment?" Rather, the starting point for inquiry into employers liability for sexual harassment by a supervisor should begin with the question, "did the harassment result in a tangible employment action?" If the answer to that question is "yes," the employer is strictly liable for the supervisor’s misconduct.

On the other hand, if the answer is "no," several follow-up questions require resolution before determining employer liability. First, the court must determine whether the harassment was severe or pervasive. If it was not, the employer escapes liability. Even if the conduct was severe or pervasive enough to invoke liability, the employer may escape liability upon proof of the two-pronged affirmative defense articulated in Faragher and Ellerth. The first prong of the defense requires the employer to prove that it took reasonable care to prevent and correct sexual harassment. The second prong of the defense requires the employer to prove that the plaintiff unreasonably failed to take advantage of the employer’s preventive or corrective procedures, or to avoid harm otherwise.

III. Eleventh Circuit and District Court Applications of Faragher and Ellerth in the Hostile Environment Setting

In the two-plus years following Faragher and Ellerth, the Eleventh Circuit and District Courts within this Circuit have struggled to synthesize and apply the new framework. The following cases typify the current case law.

A. Madray v. Publix Supermarkets, Inc., 208 F.3d 1290 (11th Cir. 2000), cert. denied, __ U.S. __, 121 S. Ct. 303, 148 L. Ed.2d. 243 (2000).

The underlying facts involved two Plaintiffs (Connie Lynn Madray and Melody Holden) who worked at a Publix store managed by Ronald Selph. Publix promulgated a sexual harassment policy that it disseminated to employees through its employee handbook. The policy included a number of reporting options for victims of work-place harassment as well as an "Open Door Policy" which encouraged employees to discuss problems or concerns with anyone in management up to and including top-level management. Plaintiffs admitted receiving employee manuals containing the sexual harassment policy.

Store Manager Selph was a "hugger." He hugged and patted all the employees, whom he considered to be "like family." Plaintiffs found Selph’s hugging and patting objectionable. Indeed, Plaintiffs found Selph’s embraces, kisses and sexually suggestive comments so objectionable, they complained to three different managers over the course of several months. All of the managers to whom Plaintiffs complained were subordinate to Selph, but were superiors of Plaintiffs. One manager took a "get-over-it" attitude, telling Plaintiffs that Selph hugged her as well. None of the three managers reported Selph’s conduct up the chain of command for several months. Finally, however, one of the managers reported Selph’s conduct to the district manager, Richard Rhodes (Rhodes).

The next day, Rhodes initiated an investigation into Selph’s conduct, which resulted in Selph’s discipline, including a written warning, a demotion, and a transfer to another store in a different city. Plaintiffs’ pay and work schedules were not affected.

The district court began its analysis with an inquiry into the employer’s affirmative defense as described in Ellerth and Faragher, finding that because no tangible employment action was taken against the Plaintiffs, Publix was not vicariously liable for Selph’s conduct. The court granted summary judgment to Publix because Publix exercised reasonable care to prevent and correct promptly any sexually harassing behavior.

On appeal, Plaintiffs argued that Publix was not entitled to raise the Faragher and Ellerth affirmative defense to vicarious liability because "questions persisted about (1) whether Publix exercised due care to prevent sexual harassment in its store; (2) when Publix became aware of the sexual harassment to which . . . Plaintiffs were being subjected, and (3) whether . . . Plaintiffs utilized the appropriate procedures for reporting sexual harassment." Id. at 2270. In essence, Plaintiffs urged the Eleventh Circuit to find that their repeated complaints to three assistant managers over a period of six months prior to Rhodes’s investigation placed Publix on notice of the harassment.

Nevertheless, the Eleventh Circuit affirmed the lower court’s decision granting summary judgment to Publix, finding that because the Publix policy designated only the store manager (Selph) as the appropriate company representative within the store to whom a victim of harassment could complain, Plaintiffs’ notice to other managers did not place Publix on notice of the harassment. Moreover, because the policy designated other individuals outside the store as appropriate company representatives to whom a victim of sexual harassment could complain, the court found the Publix procedures reasonable. The court held that the Publix policy should be strictly construed against Plaintiffs because the policy followed EEOC guidelines and "did not require that the employee complain to the offending supervisor or through the supervisor’s chain of command and the procedures provided multiple avenues of lodging a complaint to accessible, designated representatives."

Although the Eleventh Circuit correctly observed that courts must first consider the question of notice when determining whether an employer responded reasonably to correct promptly sexual harassment, the court rejected Plaintiffs’ argument that Publix received notice vis-à-vis Plaintiffs’ complaints to three different managers. In the court’s construction of the Faragher and Elllerth paradigms, Plaintiffs lost their right to sue for sexual harassment by failing to strictly adhere to the policy’s procedures for complaining.

B. Cox v. Bankcard America et al., LEXIS 17970, 78 Fair Empl. Prac. Cas. (BNA) 23 (N.D. Ga. 1998).

In this case, district court Judge Jack Camp granted Defendants' motion for summary judgment on the following facts: Plaintiff Raquel Cox (Cox) worked for Bankcard America, Inc. (Bankcard) under the supervision of Greg Richardson (Richardson). During Cox's tenure with Bankcard, Richardson agreed to let Cox leave work five minutes early each day due to Cox's child-care responsibilities. Shortly after Richardson granted Cox this five-minute accommodation, Cox alleged Richardson began to sexually harass her. Richardson's inappropriate conduct included rubbing Cox’s arms, shoulders, and back, and at least one instance of whispering in Plaintiff's ear. Plaintiff told Richardson not to touch her and reported his conduct to Richardson's superior, Phil Harris (Harris).

Within a day, Harris initiated an investigation of Cox's allegations. Harris discussed the matter with Cox and Richardson and requested a list of potential witnesses. Immediately after Harris discussed Cox's allegations with Richardson, Richardson had Cox informed that she could no longer leave work five minutes early. Nevertheless, Cox left work early that day. When she returned the following day, she was informed that the company "considered her to have quit[,]" and she was escorted from the building.

In reaching its decision to grant summary judgment to the Defendants, the court essentially reverted to the pre-Faragher and Ellerth analytical framework. The court first inquired whether the harassment was quid pro quo or hostile environment. The court concluded that no quid pro quo harassment occurred because no "tangible employment action resulted" from Cox's rejection of Richardson's alleged overtures. Moreover, the court concluded that Cox failed to establish a nexus between any alleged adverse employment action and her rejection of a sexual demand.

The court largely ignored the crucial question (i.e., whether the change in Cox’s work schedule constituted an adverse employment action) and simply found that Cox failed to show a causal connection between her complaint and the alteration of her work schedule, thereby concluding that Plaintiff’s sexual harassment claim required dismissal for lack of evidence of quid pro quo harassment.

C. Gibson v. Hickman, 38 F. Supp.2d 1369 (M.D. Ga. 1999).

Gibson worked as a teacher at Mary Persons High School in the Monroe County School District from 1982 through 1988. In 1988, she was promoted to Instructional Supervisor. Throughout this period, the school’s principal, Hickman, supervised her and subjected Gibson to repeated sexual jokes and remarks, unbuttoned her blouse, pantomimed oral sex, and made repeated suggestions about having an affair with her. In 1992, Gibson sought a title change to Assistant Principal. After Gibson was denied the promotion, Hickman told Gibson if she "went his way," he would go her way.

Gibson reported Hickman’s comments and conduct to Hickman’s supervisor, Superintendent Dumas. Gibson renewed her request for a title change in 1994, and Hickman again told Gibson that she would have to "go his way" in order for him to "go her way." Once again, Gibson reported Hickman's comments and conduct to Dumas. The following month, Gibson reported additional objectionable comments and conduct to Dumas. Dumas responded by telling Gibson to take her concerns to the Board. Plaintiff did, but she heard nothing for nearly a year. When she did, in March of 1995, the Board notified her that her contract would not be renewed. Gibson appealed, but the Board upheld the non-renewal. It did, however, offer her a teaching job at Mary Persons, the high school where Hickman still worked as principal.

Under these facts, Judge Owens denied Defendants’ Motion for Summary Judgment. The court offered a refreshingly straightforward analysis of Plaintiff’s claims, emphasizing the importance notice plays in resolving issues of corporate liability in a post- Faragher and Ellerth framework. As Judge Owens explained, employers can be held directly or vicariously liable for a supervisor's harassment of a subordinate. Direct liability lies where the employer intends or negligently permits the harassment; for example, direct liability would attach where an employer fails to remediate harassment after receiving notice of same. Vicarious liability exists when a supervisor's harassment results in a tangible employment action being "taken against the victimized employee." However, where the supervisor's harassment does not result in a tangible employment action, the corporate employer may escape vicarious liability by proving the two-pronged affirmative defense described in Ellerth and Faragher. The court concluded that based on the facts, Gibson offered sufficient evidence to raise material issues of fact as to direct and vicarious liability.

D. Dees v. Johnson Controls World Services, Inc., 168 F.3d 417 (11th Cir. 1999).

Mashell Dees (Dees) worked in the Human Resources Department of Johnson Controls World Services, Inc. (World Services). World Services transferred Dees to a Fire Department (at her own request), and she became its Office Coordinator. The Fire Department's location was separate from other World Services' facilities and was managed by on-site Fire Chief Waymon Rainey (Rainey) and Assistant Chief Jerry Jacobs (Jacobs). Dees worked at the Fire Department for three years. According to Dees, Rainey and Jacobs subjected her to a "continuous barrage of sexual harassment" and "almost daily abuse" in the form of sexually explicit statements and conduct. At one point, Jacobs picked Dees up and squeezed her so tightly that she urinated on herself; Jacobs joked with other firefighters about the incident.

In addition to Jacobs and Rainey, other firefighters repeatedly propositioned Dees, and on various occasions firefighters made suggestive statements and comments. One firefighter ground his groin into Dees' buttocks and stated "look at that sexy mama, I could just eat you in that skirt." Men grabbed her, slapped her buttocks, and groped her legs. Although Dees claimed that she repeatedly complained of the harassment to Rainey, he dismissed her complaints, telling her she "needed to get used to it[.]" Dees admitted that a one-page sexual harassment policy was issued and in place prior to the alleged harassment.4 Dees finally complained to Human Resources in August of 1994, and she was immediately transferred to a comparable position in another department, where she continued to receive raises and ultimately became the highest paid Office Coordinator on the base. Moreover, based on her complaint, World Services initiated an investigation that resulted in the termination of Jacobs and one firefighter as well as the placement of Rainey on "indefinite conditional employment status."

Dees sued on three theories. First, Dees claimed that the harassment was so pervasive that World Services had actual or constructive knowledge of the harassment, yet failed to take appropriate remedial action. Second, Dees claimed that as agents of World Services, Rainey and Jacobs were aided in accomplishing the harassment due to the agency relationship. Third, Dees claimed that World Services should be held liable because Rainey and Jacobs's apparent authority "deterred her from filing a complaint." The district court was unimpressed with Dees' arguments and entered summary judgment in favor of World Services. The lower court reasoned that because World Services took prompt remedial action after Dees finally complained to Human Resources, World Services could not be held liable for the harassment under any theory.

The Eleventh Circuit vacated the lower court’s judgment in favor of the employer and remanded the case to the district court. In its decision, the Court of Appeals explained that employers may be held directly or vicariously liable for a supervisor's harassment. Direct liability stems from an employer's negligence in failing to remediate harassment about which the employer knows or should know. Echoing the Faragher and Ellerth analyses, the court observed that vicarious liability most likely occurs where the supervisor engaging in the harassment is a corporate "alter ego" (i.e., someone so high in the corporate hierarchy as to be the company's alter ego), where the supervisor accomplishes his purposes through his "apparent authority," or where the supervisor is "aided in committing the harassment by the existence of his agency relationship with the employer."

[A]n employer is vicariously liable for sexual harassment committed by a supervisor when the harassment results in a 'tangible employment action' (such as termination or unwanted reassignment) against the victimized employee. . . . [However, in regard to] both the direct liability standard and the employer's affirmative defense to vicarious liability, the employer's notice of the harassment is of paramount importance; if the employer had notice of the harassment (which is required for direct liability but not required for vicarious liability), then it is liable unless it took prompt corrective action.

Dees at 422.

E. Mendoza v. Borden Inc., 195 F.3d 1238 (11th Cir. 1999), cert. denied, 529 U. S. 1068 (2000).

Mendoza worked for Borden sixteen months. During her last eleven months with Borden, Daniel Page (Page) supervised her. Page "constantly" watched Mendoza when she was at work, followed her around the office, looked her "up and down" and on a couple of occasions "looked [her] up and down, and stopped in [her] groin area and made a . . . sniffing motion." Id. at 1242-43. Mendoza admitted that Page never said anything sexually provocative or vulgar to her. Page touched her only once, when her in the hall and "rubbed his right hip up against my left hip." Id. The only statement Mendoza attributed to Page as overtly sexual was described as an incident when Mendoza confronted Page and tried to get him to leave her alone. "I came in here to work, period." Mendoza testified telling Page. To which Page responded saying, "Yeah, I’m getting fired up, too."

The court granted Borden’s motion for directed verdict, and the Eleventh Circuit affirmed, finding insufficient evidence to send the issue of sexual harassment to a jury. The majority reached this conclusion, in large part, by determining that Page’s conduct did objectively alter the terms or conditions of Mendoza’s employment. Specifically, the court outlined four factors as informing the analysis of the objective standard. "Those four factors include (1) "the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating or a mere offense of utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance." On the facts raised, a deeply divided Eleventh Circuit found Page’s conduct to be below the "baseline of actionable conduct" and therefore insufficient as a matter law. Id. at 1251-52.

Judge Tjoflat’s stinging dissent characterized Page’s conduct as a virtual stalking that ultimately forced Mendoza to quit her job. The dissent complained that the majority dismissed Page’s conduct as inconsequential and insubstantial only by employing the intellectual and factual fiction that each incident should be considered in isolation from other incidents. In contrast, the dissent argued that taken cumulatively and in light of the totality of circumstances, Mendoza presented substantial evidence by which a jury could find Page created and maintained a sexually hostile environment in violation of Title VII.

Footnotes

1 Meritor, of course, was the first case wherein the U. S. Supreme Court held sexual harassment actionable under Title VII.

2 By way of reminder, in Faragher, two male supervisors made repeated sexually explicit and offensive comments to two female lifeguards. The female lifeguards complained to another supervisor, but that supervisor did not report the conduct. The city gained actual knowledge of the male supervisors’ conduct only after the female lifeguards resigned, and one sent the city a letter complaining of the harassment. Thereafter, the city investigated the allegations and disciplined the male supervisors. The U. S. District Court entered judgment in favor of Faragher, finding the city liable under an agency theory. The Eleventh Circuit Court of Appeals reversed the lower court’s judgment, finding that, although the conduct was severe and pervasive enough to create an abusive work environment, the city could not be held liable because the supervisors were acting outside the scope of their employment when harassing the female lifeguards.

3 By way of reminder, Ellerth involved an employee who worked as a salesperson in a two-person satellite office. A mid-level manager (not a direct supervisor) allegedly subjected Ellerth to a barrage of sexually charged and offensive comments. Ellerth claimed that the manager intimated that her work-life would be "easier" if she were to accept his sexual overtures. Nevertheless, Ellerth rejected his boorish advances and suffered no adverse employment consequences. To the contrary, she received merit raises and a promotion during her 15-month tenure at Burlington. Although Ellerth knew about the company’s policy against sexual harassment, she declined to inform anyone in authority about the manager’s conduct until after resigning from her position. The District Court found that the employer was liable under a negligence theory. The Seventh Circuit Court of Appeals reversed the lower court in a decision offering no rationale except that vicarious liability applied because of the quid pro quo aspects of the claim.

4 After Dees complained about the harassment, World Services issued a six-page policy providing detailed instructions on how to file internal sexual harassment complaints.

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