Rothman Gordon: Lessons In The Necessity Of Maintaining A Workplace Free Of Illegal Harassment

Lessons In The Necessity Of Maintaining A Workplace Free Of Illegal Harassment

In two cases in its 1998 term, the United States Supreme Court revisited and rewrote the law on employer liability for illegal harassment by supervisory personnel. Recent federal cases within the jurisdiction of the Third Circuit Court of Appeals (the federal appeals court with jurisdiction over our area) have applied these cases in situations where employee plaintiffs have alleged that supervisory harassment compelled them to resign. The results of these cases emphasize, for employers, the importance of maintaining a work place free of any kind of illegal harassment, and for employees, the possible consequences when employers do not meet this responsibility.

Harassment is illegal when it is based on a protected characteristic of the victim, such as the victim's race, sex, age, national origin, disability, or other protected characteristic. Moreover, the law against illegal harassment is not intended to erect a general code of civility in the workplace — it is intended to prevent situations where submission to the unwelcome harassing conduct essentially becomes a term or condition of employment. Broadly, this can occur in at least two kinds of situations. In the most extreme cases, submission to the unwelcome conduct is actually traded for job benefits. Classically, this type of harassment involves situations, for example, when a male (or female) boss requires a subordinate employee to negotiate their raise in exchange for sexual favors in a motel room. This type of harassment has been called quid pro quo harassment.

More common than quid pro quo harassment is what is called hostile environment harassment. This type of harassment is illegal when there are severe or pervasive words or conduct or both which make a work environment hostile for a member of a particular protected group. For example, one can find published cases describing environments characterized by repeated racial slurs, racist graffiti, hang men's nooses in lockers, etc. These kinds of cases would be classic examples of a hostile work environment based on race.

Hostile environment cases do not necessarily require that the conduct which creates the hostile environment be explicitly racist, sexist, or ageist, etc. in content. A work environment can be illegally hostile for a particular protected group when the totality of circumstances show severe or pervasive abusive conduct directed on the basis of membership in a protected group. Thus, for example, if a supervisor directs abusive and demeaning comments repeatedly to male but not female subordinates involved in comparable conduct, that supervisor could be creating a hostile work environment based on sex for male subordinate employees, even if the abusive and demeaning conduct does not contain any reference to sex or gender.

When is it appropriate to hold an employer financially responsible for illegal harassment by the employer's employees? Obviously, it is very rare for employers to explicitly authorize employees or supervisors to engage in harassing behavior, and courts recognize that most employees and supervisors who engage in this kind of behavior are doing so for their own personal reasons. Equally obviously, only employers have enough control over the workplace to provide a workplace free of illegal harassment. Courts have fashioned rules to allocate financial responsibility on employers for harassment by supervisors and co-workers which seek to strike a fair balance between the generally true observation that very few employers explicitly authorize harassing behavior, but that the employer must be ultimately responsible for the work environment. In general, when an employee is subjected to illegal harassment by co-workers, the employer is liable for the harassment, based on a negligence standard. Under this standard, employer liability results when the employer knew or should have known about the harassment and failed to take prompt and reasonable steps to end

it. Different rules apply when the employer's supervisors are responsible for the harassment. In 1998, the United States Supreme Court verbalized a new test for employer liability for harassment by supervisors. The two cases in which this was done were Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998). These cases held that employers are subject to vicarious liability under Title VII where a supervisory employee creates a hostile work environment based upon sex. The Court held that, employers are always vicariously liable for unlawful harassment perpetrated by supervisory employees if the harassment culminates in a "tangible employment action" against the plaintiff. A "tangible employment action" is defined as 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."

In cases that do not involve a tangible employment action, the Supreme Court crafted an affirmative defense that employers can invoke to avoid liability. This affirmative defense requires the employer to prove that: (1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Other cases have held that the same principles which the Supreme Court articulated in the sexual harassment context in Faragher and Ellerth also apply to other prohibited harassment such as that on the basis of race, color, religion, national origin, age, or disability.

A very important question which has arisen in the wake of Faragher and Ellerth is whether a constructive discharge should be treated as a tangible employment action. Normally, when an employee resigns employment, that resignation is viewed as a voluntary act by the employee which has the legal effect of a waiver by the employee of any rights he or she might have had in relation to continuation in the job. However, this is not always the case, and there are situations where the law recognizes that the employer has actually forced the employee to quit, as a result of which the employee's quit should be treated legally as if the employee was fired. Sometimes, this is put to the employee as an explicit choice, "If you don't resign your job right now, we are going to fire you." Sometimes, the employer is responsible for allowing working conditions which are so intolerable that a reasonable person in the victim's position would perceive that he or she had no choice but to resign. In both these circumstances, the law construes what would otherwise be a voluntary resignation as a discharge, hence the term, "constructive discharge."

In Cardenas v. Massey, 269 F.3d 251 (3rd Cir. 2001), the Third Circuit Court of Appeals discussed whether a constructive discharge constituted a tangible employment action, suggesting that it might hold this to be the case. The Appeals Court in Cardenas specifically observed the plaintiff had come forward with enough evidence to create a fact question regarding whether the defendant had created a hostile work environment based upon the plaintiff's national origin. The Court concluded that a jury could reasonably find the plaintiff was constructively discharged based upon the same evidence the plaintiff used to prove a hostile working environment.

More recently, in Hawk v. Americold Logistics, LLC, 2003 U.S. Dist. LEXIS 3445 (E.D.Pa. 2003), the United States District Court for the Eastern District of Pennsylvania affirmatively held that a constructive discharge constituted a tangible employment action, and expressly cited Cardenas in support of his holding.Christine Hawk began temporary employment with Americold Logistics in June, 1999. She became a full-time employee in December of that year. During most of the time she was employed at Americold, Jack Bambary served as one of her direct supervisors. Within a month of her temporary employment, he began making comments of a sexual nature and even visited her home uninvited on several occasions. She reported the harassment to another supervisor in August, 1999 but afraid of losing her job, she did not name Mr. Bambary. In March of 2000, she did report her allegations naming Bambary to the company's Human Resource Manager who conducted interviews with both Ms. Hawk and Mr. Bambary and other employees named by Ms. Hawk as witnesses to the harassment.

Americold then took further action and temporarily transferred Ms. Hawk to a facility where she would not encounter Mr. Bambary. Mr. Bambary was put on notice and was instructed not to have contact with Ms. Hawk in or out of the workplace. However, before the transfer was finalized, Ms. Hawk's future supervisor at the new facility called her a "slut" and a "liar" to a future co-worker, and stated her view that Ms. Hawk was "hanging on" the men in the old facility.

Americold ultimately concluded its investigation, determining that Mr. Bambary had been unprofessional at times, but had not sexually harassed Ms. Hawk. The company placed Mr. Bambary on a "last chance agreement." He was ordered to have no contact with Ms. Hawk. Ms. Hawk was returned to her old facility on a different shift from Mr. Bambary, to minimize the chance the two would have contact. She went to work one day there and had contact with Mr. Bambary. She resigned, informing the company she believed she had been constructively discharged. Americold conducted a further investigation and fired Mr. Bambary, advising Ms. Hawk she could return. Ms. Hawk did not return, and sued the company.

Americold, the defendant in this suit, said that both Mr. Bambary and Ms. Hawk had attended the company's sexual harassment training, they had conducted an investigation and took remedial measures to resolve the complaint so they should not be held liable. Americold moved to dismiss the suit.

Following an extensive discussion of Cardenas, the judge in the Hawk case allowed the case to go forward to trial in front of the jury, rather than dismissing the case as requested by the company. The judge found that because the plaintiff, Ms. Hawk, had established the existence of a hostile work environment, and had independently demonstrated the jury could conclude that a reasonable person in her position would have resigned, the plaintiff had "suffered a tangible employment action, so as to preclude application of the Faragher/Ellerth affirmative defense."

The Hawk case dramatically illustrates the risks for an employer when harassment is alleged by supervisory personnel. Constructive discharge constitutes a tangible employment action if the situation is not effectively addressed and the work environment is such that a reasonable person in the position of the victimized employee would have resigned. In this situation, the fact that the employer has a sexual harassment policy is not enough to protect it because the tangible employment action in the form of the constructive discharge bypasses the Faragher/Ellerth affirmative defense, and there is the possibility of inescapable liability for the illegal harassment by the supervisor.

In Hawk, the employer was ultimately haunted by its reluctance to terminate the harasser or alternatively to assign the harasser or the victim permanently to a different work site. Other problems in the employer's response also emerged on the record. For example, the employer had not followed through effectively on an early complaint by Hawk to a supervisor in which she indicated she was being harassed but did not name the harasser.

Employers who have any questions as to how to handle situations involving possible unlawful harassment should immediately consult their legal counsel. Employers must maintain effective anti-harassment policies in place, but that is not enough. Employers should also train their employees and supervisors to minimize the risk of harassment, and monitor the workplace to ensure the employer's anti-harassment policies are being followed. Similarly, employees should understand that most resignations will not qualify as constructive discharges. Employees should consult with an attorney prior to separating employment to ensure their legal rights are not being compromised.