Rothman Gordon: Discriminatory Harassment and the Affirmative Defense After Faragher and Ellerth

Discriminatory Harassment and the Affirmative Defense After Faragher and Ellerth

What is Discriminatory Harassment?

Federal and State Laws: Both the Equal Employment Opportunity Commission (EEOC) and the courts have uniformly agreed that discriminatory harassment on the basis of sex, race, color, religion, or national origin unlawfully violates Title VII of the Civil Rights Act of 1964. Courts have also held that the Americans with Disabilities Act (ADA) prohibits harassment on the basis of a disability and that the Age Discrimination in Employment Act (ADEA) prohibits harassment on the basis of age. Unlawful harassment on these bases has also been held to violate the Pennsylvania Human Relations Act (PHRA).
A Brief History:

Harassment is recognized as a form of sex discrimination: Sexual harassment was first recognized as a form of sex discrimination in 1976, in the District of Columbia district court's decision of Williams v. Saxbe.
The EEOC's 1980 Guidelines: In the EEOC's 1980 Guidelines on Discrimination Because of Sex, one section addressed sexual harassment. With regard to quid pro quo harassment, the Guidelines essentially restated lower court holdings in that area of the law. In the area of hostile environment harassment, the EEOC borrowed from analogous judicial authority in the areas of race and national origin discrimination. The EEOC stated that unwelcome sexual conduct violates Title VII when it "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."
The Supreme Court:
1. In 1986, the Court's decision of Meritor Savings Bank v. Vinson, held that Title VII prohibits harassment in employment, even if the harassment does not cause a direct financial injury. In Vinson, the plaintiff and her supervisor had had sexual relations 40 to 50 times. The plaintiff claimed that she had engaged in these relations out of fear of losing her job. Additionally, her supervisor had engaged in various other sexually explicit behavior towards the plaintiff while at work. The district court found that the sexual relationship between the plaintiff and her supervisor was voluntary and not related to her employment, and she therefore had not been the victim of sex discrimination. In addition, the district court held that because the bank had no notice of the conduct, it could not be held liable for such conduct. The Court stated that "the fact that sex-related conduct was 'voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were 'unwelcome.'" While the Court held that there need not be any financial injury to the plaintiff, and that it is enough if the psychological aspects of employment are affected, the Court cautioned that unwelcome conduct of this nature violates Title VII only if it is "severe or pervasive."
2. In 1998, the Court addressed sexual harassment in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. These cases are discussed in detail below.

C. Third Circuit Case Examples:

Sexual Harassment: A plaintiff alleging sexual harassment was able to bring a claim under Title VII in Hurley v. Atlantic City Police Dep't, because she demonstrated that the complained of conduct, offensive graffiti and lewd pictures, would not have occurred but for the employee's gender; and it was severe or pervasive enough to make a reasonable woman believe that the conditions of employment are altered and the working environment is hostile or abusive.
Race Harassment: There are several cases within the Third Circuit which have recognized a cause of action for racial harassment. In Aman v. Cort Furniture Rental Corp., plaintiff could establish a claim for hostile work environment harassment after proving that she was referred to as "one of them," she suffered missing time cards, false accusations of wrongdoing, and others' refusal to cooperate with the plaintiff in doing her job. Proof of discriminatory harassment based on race must include a showing that race was a substantial factor in the harassment, and that if the plaintiff had been white she would not have been treated in the same manner.
Religious Harassment: The Third Circuit has recognized that a cause of action exists for claims of religious harassment. In proving a hostile work environment based on one's religion, a plaintiff must demonstrate the five elements of the prima facie case as set forth in other hostile work environment claims under Title VII. In Ambramson v. William Paterson College, upon plaintiff's proof of an adverse employment action taken against her in retaliation for complaints of ongoing antagonism, the court held that religious discrimination claims may be analyzed under a "hostile work environment" framework.
Disability Harassment: There are a number of cases within the Third Circuit which recognize a cause of action for harassment on the basis of one's disability. For example, in Walton v. Mental Health Ass'n, the court held that a cause of action for discriminatory harassment exists under the ADA if an employee can show that the discriminatory conduct was severe or pervasive where plaintiff was accused of being disabled, harassed for not returning to work from the hospital and was threatened with termination.
Age Harassment: Since the rationale underlying Congress' decision to condemn ageism in the workplace is the same as its decision to outlaw racism, courts routinely employ Title VII and ADEA case law interchangeably. Thus, a plaintiff alleging age-based discriminatory harassment must demonstrate the five elements of the prima facie case as set forth in other hostile work environment claims under Title VII.
Harassment in Violation of the PHRA: The proper analysis of a discriminatory harassment claim under Title VII and the Pennsylvania Human Relations Act is identical, as Pennsylvania courts have construed the protections of the two acts interchangeably.

Types of Unlawful Discriminatory Harassment Under Title VII, the ADEA and the ADA:
1. Tangible Job Benefit Harassment:
  1. Elements of the claim: Tangible job benefit harassment occurs when submission to or rejection of the unwelcome conduct, such as a sexual advance or a request for sexual favors, is used as the basis for employment decisions affecting an individual, or is made explicitly or implicitly a term or condition of an individual's employment.
  2. Prima facie case: In order to prove a claim of tangible job benefit harassment, a plaintiff must show that "his or her response to unwelcome advances was subsequently used as a basis for a decision about compensation, terms, conditions, or privileges or [sic] employment." The employee must show that his or her response was subsequently used as a basis for a decision affecting his or her compensation, terms, conditions, or privileges of employment. For the Third Circuit definition of a tangible employment action, see Section II.E.1.c.(1).
  3. Nexus between protected category and harassment: In the tangible job benefit context, proof of the causal connection involves two distinct elements: (1) the tangible job detriment would not have occurred "but for" the complainant's reaction to the supervisor's request for sexual favors, and (2) that request would have not occurred "but for" the complainant's gender. In Farrell v. Planters Lifesavers Co., the court reversed the district court's ruling that plaintiff failed to establish a causal connection between the plaintiff's response to unwelcome sexual advances and an employer's subsequent employment decision and stated that employees "may rely on a broad array of evidence to establish a causal link."
2. Hostile Work Environment Harassment:
  1. Elements of the claim: A hostile work environment harassment claim involves a workplace atmosphere that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. In addition, a hostile work environment is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." A hostile work environment may occur absent any economic effect on the complainant's employment.
  2. Third Circuit — standard of proof: Whether a working environment is sufficiently hostile or abusive must be determined by both an objective standard, as viewed by a reasonable person, and a subjective standard, taking the victim's perception into account. In order to prove a hostile environment claim under Title VII, a plaintiff must establish that the environment of which she complained was objectively offensive.
  3. Prima facie case: To establish a prima facie case of a hostile work environment under Title VII, a plaintiff must demonstrate four elements: (1) the employee suffered intentional discrimination because of a protected characteristic; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same protected characteristic in that position.
  4. Nexus between protected category and harassment: A plaintiff must show that the harassment to which she was subjected was "because of" her protected characteristic. She may do this by various means, but "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." For example, a female may be harassed in a way that uses sex-specific and derogatory terms and which makes clear that the harasser is motivated by general hostility to the presence of women in the workplace. A plaintiff may also offer direct comparative evidence about how the alleged harasser treated members of both sexes in the workplace. The Third Circuit, in Andrews v. City of Philadelphia, held that "pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally" may evidence a sexually hostile environment. "Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 'discrimination because of sex.'"

The Legal Landscape After Faragher and Ellerth

Faragher v. City of Boca Raton
1. Facts: After resigning from the city as a lifeguard, Beth Ann Faragher brought an action against two immediate male supervisors and the city of Boca Raton, alleging various claims of sexual harassment under Title VII. Faragher alleged that her two supervisors, Terry and Silverman, created a sexually hostile atmosphere at the beach by repeatedly subjecting her and other female lifeguards to "uninvited offensive touching," by making lewd remarks, and by speaking of women in offensive terms. In addition, the city failed to disseminate its policy against sexual harassment among the beach employees, had made no attempt to keep track of the conduct of the lifeguard supervisors and the its sexual harassment policy did not include any assurance that the harassing supervisors could be bypassed in the complain procedure.
2. Analysis: In deciding whether the city could be held vicariously liable under Title VII for the hostile work environment created by the supervisors, the Court held that "an employer can be subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee." When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages; however, "no affirmative defense is available...when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." In addition, the Court declined to remand the case because the because the city had failed to exercise reasonable care to prevent the supervisors' harassing conduct, and the employer, therefore, could not raise the affirmative defense on these facts.
Burlington Industries v. Ellerth
1. Facts: Respondent-employee Kimberly Ellerth worked as a salesperson in one of Burlington's divisions in Chicago, Illinois. After allegedly suffering fifteen months of "repeated boorish and offensive remarks and gestures" by one of her supervisors, a mid-level manager, Ellerth quit her job. While employed, Ellerth suffered no adverse, tangible job action, nor did she inform anyone of authority about her supervisor's conduct, despite her knowledge of the company policy prohibiting sexual harassment.
2. Analysis: The Supreme Court addressed the issue of whether an employee who refused the unwelcome and threatening sexual advances of a supervisor, yet suffered no adverse, tangible job consequences, could recover against the employer without showing that the employer was negligent or otherwise at fault for the supervisor's actions. The Court again stated that an employer would be vicariously liable for a supervisor's activities, but that an affirmative defense would be available if there was no tangible job action. "A tangible employment action constitutes 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." The Court held that because there was no tangible employment action in Ellerth's case, the company would have an opportunity to assert and prove the affirmative defense to liability on remand.
Affirmative Defense:
1. Faragher and Ellerth Affirmative Defense: An employer may raise an affirmative defense to liability when harassment by a supervisor does not culminate in a tangible employment action. The affirmative defense requires proof of two elements:
  1. that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
  2. that the plaintiff employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer or to avoid harm otherwise.
2. The Third Circuit: In general, an employer satisfies the first prong of the affirmative defense by promulgating a reasonable sexual harassment policy, by investigating complaints promptly, and by taking appropriate remedial action. The affirmative defense fails if an employer promulgates, but fails to enforce a sexual harassment policy. To successfully raise the affirmative defense, an employer must establish both elements of the defense, and indeed, most courts interpreting these decisions have characterized the affirmative defense in the conjunctive. In Hawk v. Americold Logistics, L.L.C., the court held that "an employer may succeed on a Faragher/Ellerth affirmative defense only where no tangible employment action has been taken and where both prongs of the defense are separately satisfied."
  1. Employer Failed to Exercise Reasonable Care to Prevent and Correct Promptly any Sexually Harassing Behavior: The plaintiff in Hurley v. Atlantic City Police Department, alleged that she was subjected to ongoing sexual harassment by supervisors and co-workers throughout her employment with the defendant. The defendant issued written anti-harassment policies but failed to enforce them, painted over offensive graffiti every few months, only to see it return in minutes, and failed to investigate sexual harassment as it investigated and punished other forms of misconduct. The court held that the defendant failed to properly enforce its anti-harassment policy, therefore, the mere existence of its policy was not a defense to the plaintiff's sexual harassment claim.
  2. Employee Unreasonably Failed to Take Advantage of the Preventative or Corrective Opportunities Provided by the Employer: In the case of Ogden v. Keystone Residence, the court found that despite having access to an established complaint procedure, the plaintiff unreasonably failed to complain of harassment by her supervisor. The employer had an anti-harassment policy that allowed employees to report harassment to a Human Resources Specialist, who could then launch an investigation into the allegations. The plaintiff signed a document indicating that she was aware of the anti-harassment procedures, yet she failed to utilize the complaint process by not complaining to a Human Resource Specialist, and she gave no satisfactory reason for the omission. The court found that these facts alone allowed the employer to prevail on the affirmative defense.
  3. Employee Feared Employer Retaliation in Response to Reported Harassment: In Anderson v. Deluxe Homes of PA, Inc., the plaintiff alleged that she was subjected to sexual harassment by two other employees, one a co-worker, and the other her supervisor. The harassment consisted of offensive comments, touching of the plaintiff and obscene gestures. The employer argued that it had an appropriate sexual harassment policy and that the plaintiff unreasonably failed to utilize it, despite being aware of the employer's policy, and it therefore had proven the affirmative defense. The plaintiff testified that she was afraid to complain to management because her supervisor was participating in the harassment and other employees told her not to complain or she would be terminated. The district court found that to reach the jury on the affirmative defense, the plaintiff must provide "at least an issue of fact as to whether her fear of retaliation was not unreasonable." Although the employer satisfied its burden by presenting evidence that plaintiff did not complain, Plaintiff was able to point to an issue of fact that allowed her to go to trial by demonstrating that "her inaction may have been reasonable by asserting that other employees informed her that she was in danger of losing her job if she complained." The court held that it is for a jury to decide, if it determines that plaintiff's allegations are true, whether she acted unreasonably in failing to complain to management about her employer's actions.
Respondeat Superior: Respondeat superior liability is an essential part of a plaintiff's prima facie case. Whether an employer will be held liable for harassment in its workplace depends upon three things: (1) who committed the harassment, (2) whether the harassment resulted in a tangible employment action, and (3) the employer's response to the conduct.
1. Supervisors: Employers are vicariously liable for supervisor harassment. Consequently, determining whether an employee is a supervisor is essential to determining liability.
  1. Faragher and Ellerth definitions: An employer is presumptively liable for unlawful harassment if the harassment was committed by a supervisor "with immediate (or successively higher) authority over the employee." The Supreme Court in Faragher did not articulate a bright-line test as to who is a supervisor, but determined that the two harassers in that case were supervisors because one was authorized to hire, supervise, counsel, and discipline lifeguards, while the other harasser was responsible for making the lifeguards' daily work assignments and supervising their work and fitness training. Similarly, in Ellerth, the Supreme Court stated that an individual qualifies as a supervisor if he or she is authorized to take or recommend tangible employment actions affecting an employee.
  2. EEOC Definition: The EEOC defines a supervisor as a person who, without regard to job title, has authority to undertake or recommend tangible employment decisions affecting the employee or has authority to direct the employee's daily work activities.
  3. Third Circuit:
    1. Harasser qualifies as a Supervisor: Although the harasser was not a manager of the plaintiff's department, he could, and in fact did, order plaintiff to act as a spotter in forklift areas, direct plaintiff where to stand and what to do, tell plaintiff to go to his department to perform tasks under his direction, and submit written and verbal comments to the store manager that would be considered in her evaluations for a merit raise. Accordingly, the court qualified harasser as a "supervisor."
    2. Harasser does not qualify as a Supervisor: The harasser was not a supervisor when Plaintiff could not show that the employee had authority to hire, fire, re-assign, or demote her or set her work schedule or pay rate, or that he had the power to take tangible employment action against her or affect her daily work activities.
2. Coworkers: Although the Supreme Court has imposed vicarious liability on employers for supervisor harassment, liability for coworker harassment is based on employer negligence, recklessness or negligent failure to take remedial action upon notice of the harassment.
  1. Generally: Coworker harassment is generally hostile work environment harassment because coworkers cannot typically grant or deny job benefits, which is required to prove tangible job benefit harassment.
  2. Standard of proof: To recover for coworker harassment, a plaintiff must show that the employer was negligent in that it knew or should have known of the charged sexual harassment and failed unreasonably to take prompt and appropriate corrective action.
  3. Third Circuit:
    1. Employer held liable: Employer had knowledge of, and was therefore liable for, the coworker harassment because employee's supervisor witness most of it. Further, the employer did not take sufficient action to stop the harassment but merely issued written policies but did not enforce them, painted over offensive graffiti every few months only to see it go up again in minutes, and failed to investigate sexual harassment as it investigated and punished other forms of misconduct.
    2. Employer held not liable: Employer was not knowledgeable about the coworker harassment and, therefore, not liable where the harassing comments were made outside the supervisor's hearing range; the period of harassment was a mere three weeks and the number of interactions between plaintiff and the offending coworker were limited during that time; and the plaintiff's only communication to management regarding the harassment was to ask whether "cursing [was] allowed on the sales floor."
3. Supervisor or Coworker of the same sex: The Supreme Court has ruled that sex discrimination consisting of same-sex harassment is actionable under Title VII.
  1. Scope: The scope of prohibition against same-sex harassment does not incorporate harassment based on sexual orientation.
    1. In order to state a claim for relief for sexual harassment, the plaintiff must show that he or she was harassed because of sex, and not because of sexual orientation.
    2. Where the plaintiff's complaint contains sufficient allegations of harassment based on sex, the complaint will not fail merely because it also includes allegations of harassment based on sexual orientation.
  2. Oncale v. Sundowner Offshore Servs. — Plaintiff-employee was repeatedly and forcibly subjected to sexually humiliating actions against him by his coworkers in front of the entire workforce. Further, he was physically assaulted in a sexual way and threatened with rape. After his complaints to personnel went unanswered he filed a complaint against his employer alleging discrimination because of his sex. The appellate court affirmed the district court's ruling that granted the defendant-employer's motion for summary judgment. The appellate court held that the employee, who was male, had no cause of action under Title VII for harassment by male coworkers. On certiorari, the Court held that nothing in Title VII necessarily barred a claim of discrimination because of sex merely because the plaintiff and the person charged with acting on behalf of the defendant were of the same sex. In its reversal, the Court held that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.
  3. Rene v. MGM Grand Hotel, Inc. — In a plurality opinion, the court reversed the district court's holding that Title VII's prohibition of "sex" discrimination applied only to discrimination on the basis of gender, not discrimination based on sexual preference. The court held that employee had stated a claim for sex discrimination under Title VII where the employee alleged his co-workers whistled and blew kisses at him, and grabbed his crotch and poked their fingers in his anus through his clothing. Title VII prohibits such conduct without regard to whether the perpetrator and the victim were of the same or different genders, and without regard the sexual orientation of the victim. Offensive sexual touching was actionable discrimination even in a same-sex workforce. So long as the environment itself was hostile to the employee because of sex, why the harassment was perpetrated was irrelevant.
  4. Nichols v. Azteca Restaurant Enterprises, Inc. — In Nichols, the plaintiff alleged that he was subjected to verbal harassment based upon the perception that he was effeminate and because he failed to conform to a male stereotype. The harassment consisted of the plaintiff being attacked because he walked like a woman, being referred to as "she" and "her," and being called vulgar names cast in female terms. The court found this verbal abuse to be closely linked to gender, and therefore a violation of Title VII.
  5. Third Circuit:
    1. Bibby v. Philadelphia Coca Cola Bottling Company: Plaintiff's claim for discrimination because of sex failed because the only discriminatory conduct alleged was one physical assault (with no sexual component) and one incident of serious name calling (with a sexual component). The employee failed to prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex because he did not argue that he was being harassed because he was a man and offered nothing that would support such a conclusion. There was no allegation that his alleged harassers were motivated by sexual desire, or that they possessed any hostility to the presence of men in the workplace or in the employee's particular job. Moreover, he did not claim that he was harassed because he failed to comply with societal stereotypes of how men ought to appear or behave or that as a man he was treated differently than female co-workers. His claim actually was that he was discriminated against because of his sexual orientation, which was not actionable under Title VII.
    2. The Third Circuit has articulated three ways to demonstrate same-sex harassment:
      1. presenting a scenario in which the harassment is motivated by the aggressor's sexual desire;
      2. showing that a harasser displays hostility towards the participation of a particular sex in the workplace or performing a particular function; or;
      3. illustrating that the harasser's conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender.
  6. Post-Bibby Third Circuit cases:
    1. Although the employee showed that he was discriminated against for not conforming to norms for the male gender under Title VII,the employee failed to meet his burden of showing that his workplace was permeated with discriminatory intimidation, ridicule, and insult, that was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment.
    2. There is no presumption that a supervisor of the same gender as the employee cannot be found liable for sexual harassment. A female employee was able to prove a prima facie case of sex discrimination against three male and one female supervisors after proving that her female supervisor assigned her to desk duty more often than her male co-workers, denied her compensation, brought formal disciplinary charges against her and caused the issuance of a negative special performance evaluation against her.
  7. Municipal Ordinances:
  (1) Some municipalities have ordinances that specifically prohibit discrimination on the basis of sexual orientation. For example, the City of Pittsburgh prohibits employers from "refus[ing] to hire any person or otherwise to discriminate against any person with respect to hiring, tenure, compensation, promotion, discharge or any other terms, conditions or privileges directly or indirectly related to employment because of race, color, religion, ancestry, national origin, place of birth, sex, sexual orientation, age, nonjob related handicap or disability."
4. Others outside the company: An employer may be responsible for the hostile work environment harassment of employees by non-employees, when it knows or should have known (through supervisory agents) of such actions and fails to take corrective action. The extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees is the key to evaluating its responsibility for such acts.
  1. Third Circuit: In Hallberg v. Eat 'n Park, the district court held that a defendant employer may be held liable for harassment of one of its employees by a non-employee customer. Similarly, in Sabo v. Lifequest, Inc., the district court noted and followed the trend among federal courts of permitting Title VII causes of action against employers for harassment of employee by non-employees such as independent contractors.
Consequences:
1. Tangible Employment Action:
  1. Faragher and Ellerth Definition: If the harassment culminates with a supervisor taking a tangible employment action the defending employer is strictly liable for the supervisor's action. The employer is not entitled to assert an affirmative defense and is liable for the entire course of conduct, not just the conduct resulting in the tangible action.
    1. The Ellerth court defined tangible employment action to include "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." The court also included, as an example, giving the employee a less distinguished title.
  2. The EEOC 3-Part Definition:
    1. A tangible employment action is the means by which the supervisor brings the official power of the enterprise to bear on subordinates, as demonstrated by the following:
    2. A tangible employment action usually inflicts direct economic harm.
    3. A tangible employment action, in most instances, can only be caused by a supervisor or other person acting with the authority of the company.
  3. Third Circuit Definition: The Third Circuit has not interpreted the term "tangible employment action" as requiring economic harm.
    1. Durham Life Ins. v. Evans — The plaintiff was deemed to have suffered a tangible adverse employment action when the employer took away the employee's office, work files and secretarial support. The Court held that "although direct economic harm is an important indicator of a tangible adverse employment action, it is not the sine qua non. If an employer's act substantially decreases an employee's earning potential and causes significant disruption in his or her working conditions, a tangible adverse employment action may be found."
    2. Farrell v. Planter Lifesavers Co. — When a tangible aspect of the employee's terms, conditions, or privileges of employment is allegedly affected as a result of the harassment, the plaintiff must show a causal connection between the harassment and the tangible adverse employment action. Plaintiff proved that the elimination of her position constituted an adverse employment action in retaliation for her rejection of sexual advances. Further, the passage of four weeks between the harassment and the job benefit decision, in connection with other circumstantial evidence, was sufficient to show causation for the purposes of establishing the prima facie case.
  4. Constructive Discharge: It is often the case that a harassment plaintiff resigns and then files a discrimination charge claiming that the harassment forced her to quit. In such cases, when a supervisor with authority over the plaintiff is the harasser, the question arises whether the ensuing alleged constructive discharge is a tangible employment action under Faragher.
    1. Suders v. Easton — In order to show that the employee was constructively discharged in violation of Title VII, he must establish the convergence of two factors: (1) he suffered harassment or discrimination so intolerable that a reasonable person in the same position would have felt compelled to resign; and (2) the employee's reaction to the workplace situation — that is, his or her decision to resign — was reasonable given the totality of the circumstances. With regard to the second factor, the court should consider whether alternatives to resigning were available to the employees. The court stated that "it may be relevant to a claim of constructive discharge whether an employer had an effective remedial scheme in place, whether an employer attempted to investigate, or otherwise to address, plaintiff's complaints, and whether plaintiff took advantage of alternatives offered by antiharassment programs."
      
      The plaintiff in Suders alleged that she was subjected to pervasive sexual harassment and discrimination at the police barracks where she worked, consisting of, for example, daily verbal harassment, repeated episodes of explicit sexual gesturing, obscene and offensive sexual conversation, and the posting of vulgar images. On two different occasions, the plaintiff approached the Affirmative Action officer and told her that she might need some help with regard to issues at the barracks. On the second occasion, the plaintiff told the Affirmative Action officer that she was being harassed and that she was afraid. During this second discussion with the Affirmative Action officer, the officer was insensitive and unhelpful and told the plaintiff that she needed to file a complaint on a particular form, which the plaintiff was unable to find. Shortly after the second conversation, a final incident proved to be the last straw. Specifically, Suders alleged that her fellow officers set her up, falsely accused her of theft, and proceeded to arrest her and treat her as they would an accused suspect. As a result of the ongoing harassment, the plaintiff felt compelled to resign from her position, and claimed that she had been constructively discharged by her employer.
      
      After finding that the plaintiff had raised genuine issues of material fact with regard to whether she was constructively discharged, and that summary judgment was therefore inappropriate, the court held that a constructive discharge, when proved, constitutes a tangible employment action. The court reasoned that "[b]y focusing on the action of a supervisor and on the type of injury to a plaintiff, it becomes clear that when a supervisor creates a hostile work environment so severe that an employee has no alternative but to resign, the official power of the enterprise is brought to bear on the constructive discharge" and that "in the same way as a formal discharge, a constructive discharge 'constitutes a significant change in employment status'...[and] inflicts the same type of 'direct economic harm.'"
    2. Cardenas v. Massey — Plaintiff was a Mexican-American who quit as a result of alleged mistreatment, disparate pay, being passed up for promotion as merited, being subjected to ethnic slurs and derogatory comments and discriminated against him in performance evaluations. The district court assumed, for purposes of summary judgment, that Cardenas suffered a constructive discharge but found missing evidence of any causal link to any of the alleged protected activity. As to the poor performance evaluation, which Cardenas also cites here as retaliatory, the district court concluded that Cardenas failed to show that the improper performance evaluation was causally related to Cardenas' engaging in any protected activity. The Third Circuit affirmed, finding that the temporal relationship in this case was, taken alone, insufficient to establish causation, because the alleged protected activity took place over a substantial period of time and any routine employment action taken during that period would necessarily be related temporally. In such circumstances, there would have to be another basis to permit the inference of a causal relationship.
    3. Aman v. Cort Furniture Rental Corp. — "In order to establish a constructive discharge, a plaintiff must show that the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign." A "continuous pattern of discriminatory treatment over a period of years" may constitute "intolerable" conditions even without a particular egregious precipitating incident. "The fact that Aman had been subject to continuous discrimination during her employment could support a conclusion that she simply had had enough. No other precipitating facts were legally required."
2. Hostile Work Environment:
  1. Faragher and Ellerth definition: If the harassment by a supervisor or successively higher employee does not result in a tangible employment action but was sufficiently severe or pervasive as to be actionable, the employer remains vicariously liable unless it can prove an affirmative defense.
    1. For any sexual harassment to be actionable the conduct must be severe or pervasive.
    2. When hostile work environment harassment involves speech or conduct that is sexual in nature, that speech or conduct violates the law only if it is unwelcome to the complaining employee, as well as severe or pervasive.
  2. Third Circuit:
    1. Abramson v. William Patterson College of New Jersey — The plaintiff in Abramson claimed that she was subjected to harassment and ultimately terminated because of her religion and in retaliation for complaining about her employer's religious discrimination against her. The proper inquiry in analyzing the first prong of the prima facie case is whether a reasonable factfinder could view the evidence as showing that discriminatory treatment of plaintiff was attributable to her protected characteristic. The plaintiff does not need to demonstrate direct proof that her harasser's intent was to create a discriminatory environment — with respect to certain conduct, such intent can be inferred. "Regardless of what the harasser's intention is, if a plaintiff presents sufficient evidence to give rise to an inference of discrimination by offering proof that her 'workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' and the conduct is based on one of the [protected categories], a hostile work environment claim will survive summary judgment."
    2. Conduct found to be severe or pervasive: Female police officers were repeatedly referred to by the male officers in an offensive and obscene manner and were personally addressed by the obscenities. Also, male police officers displayed pornographic pictures of women in the locker room.
    3. Conduct not found to be severe or pervasive: Female employee, after taking time off work for "job-related stress," allegedly due to sexual harassment, returned to an environment she considered hostile. The court found that, in analyzing the work environment after her return, her co-workers acts of squinting their eyes and shaking their fists at her, along with throwing away her unmarked lunch-bag were not severe or pervasive enough to constitute a hostile work environment.
Unions: The principles relating to illegal harassment apply in the unionized workplace, with modification to account for the representative duties of the union. In addition to seeking relief through internal mechanisms, an employee may satisfy her duty to act reasonably in reporting harassment by filing a grievance with her union, rather than using the employer's complaint process.

Duty of Fair Representation
1. The duty of fair representation requires that a union, with its exclusive statutory authority to represent all members of the designated unit, "serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct."
2. Vaca v. Sipes
  1. Vaca v. Sipes sets forth the elements of the duty of fair representation and what a member must establish to prove a breach of such duty. Vaca v. Sipes began as a case in the Missouri courts brought by a Mr. Owens alleging that he had been discharged wrongfully from his employment in violation of the collective bargaining agreement then in force between Swift and the union, and that the union had "arbitrarily, capriciously and without just or reasonable reason or cause" refused to take his grievance to arbitration. After being disqualified from work by the company doctor due to chronic high blood pressure, Owens obtained a medical authorization from an outside doctor and sought the union's help in securing reinstatement. The union filed a grievance on behalf of Mr. Owens and pursued the grievance through all the pre-arbitral steps of the grievance procedure. The union then sent Mr. Owens to a new doctor at union expense to see if better medical evidence could be obtained so the union could pursue the case through arbitration. When the union received the unfavorable medical report, the executive board voted not to arbitrate the grievance because of insufficient medical evidence. Union officers suggested to Owens that he accept Swift's offer of referral to a rehabilitation center, and the grievance was suspended for that purpose. Owens rejected the alternative and demanded arbitration, but the union refused. Owens then brought suit, obtaining a jury verdict in his favor which was ultimately reinstated by the Missouri Supreme Court.
  2. Reiterating the duty of fair representation standard, the United States Supreme Court stated: "A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith." The Supreme Court specifically addressed Owens' argument that he had a right to have his grievance taken to arbitration: "Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement."
  3. Applying the proper standard of union liability to the facts of the case, the United States Supreme Court found the jury's award unsupportable. Owens could not have established a breach of the duty of fair representation merely by convincing a jury that he was in fact fit for work at the time of his discharge. He also must have proved arbitrary or bad-faith conduct on the part of the union in processing his grievance. Here, the union had diligently supervised the grievance through the pre-arbitral steps of the grievance procedure and had sought to gather additional medical evidence, at the union's expense, to support its position in arbitration. Vaca also addressed the allocation of damages in duty of fair representation cases. The United States Supreme Court held that the Missouri Supreme Court had erred in separately assessing damages against the union for preventing the plaintiff from completing exhausting his administrative remedies. It observed that the governing principle should be to apportion liability between the employer and the union according to the damage caused by the fault of each. Damages attributable solely to the employer's breach of contract should not be charged to the union. Increases, if any, in those damages caused by the union's refusal to process the grievance should not be charged to the employer.
Sexual Harassment or Other Illegal Harassment and Union Representation Issues
1. Union as employer
  1. When a union, as an employer, confronts a hostile work environment claim, its liability is determined under traditional sexual harassment law as interpreted in the Faragher and Ellerth decisions.
2. Union liability for a hostile work environment
  1. Failure to take remedial action with regard to conduct of which the union is responsible can lead to union liability for sexual harassment in the workplace.
  2. The plaintiff in Stair v. Lehigh Valley Carpenters, a female carpenter, alleged that the union violated Title VII by creating an intimidating, hostile or offensive work environment by promoting calendars of nude women and by failing to take action on her behalf when she complained about the calendars. The union printed and distributed calendars exhibited photographs of nude or partially nude women with their breasts, buttocks, and pubic area exposed, with several of the pictures being suggestive of sexually submissive behavior. The union's name, address, telephone number, and logo appeared on the calendars. The court held the union liable for sexual harassment even though the union's officers were not specifically involved, because the union was itself promoting and distributing the calendars and did nothing after a female member complained. The court reasoned that the calendars in the work environment communicated to the women that the union views them as sexual objects rather than as skilled co-workers. The court stated that "the calendars place an additional obstacle in the path of women attempting to enter the historically all-male world of the skilled crafts. Title VII forbids such an obstacle."
3. Union as representative for member harassed by management
  1. In Local 307, International Brotherhood of Teamsters, the National Labor Relations Board held that the union did not breach its duty of fair representation by deciding not to process a grievance relating to quid pro quo sexual harassment of a member. The Board reasoned that the Union's decision was not arbitrary, but rather, made after conducting an investigative hearing on the terminated employee's complaint that her former employer's working foreman conditioned her continued employment upon giving him or another management official sexual favors.
4. Union Liability Under Title VII Relating to Grievance Handling
  1. In addition to facing potential liability for breaching the duty of fair representation with respect to grievance handling, unions face potential liability under Title VII and other anti-discrimination laws if they handle the grievances of union members in a discriminatory fashion. A union may "not cause or attempt to cause an employer to discriminate against an individual in violation of" Title VII.
  2. In Goodman v. Lukens Steel Co., employees of a steel manufacturing company brought an action, on their own behalf and on behalf of others, against their employer and their collective bargaining agents asserting discrimination claims under Title VII of the Civil Rights Act of 1964. The plaintiffs claimed that the collective-bargaining contract in effect at that time contained an express clause binding both the employer and the unions from discriminating on the basis of race. The employer was discriminating against blacks in discharging probationary employees, which the unions were aware of but refused to do anything about by way of filing grievances or otherwise. "[W]hile pursuing thousands of other legitimate grievances, ignored racial discrimination claims on behalf of blacks, knowing that the employer was discriminating in violation of the contract." The Court addressed the issue of whether the unions had violated Title VII by ignoring the processed grievances based on race. The Court held that the unions had discriminated on the basis of race by the way in which they represented the workers, and expressly held that the deliberate choice not to process grievances violated Title VII, which specifically provides that a union may "not cause or attempt to cause an employer to discriminate against an individual in violation of this section."
  3. In EEOC v. Regency Architectural Metals Corp., the grievant, Hodge, claimed that the assignment of an accused rapist to a location near her created hostile work environment. When Hodge grieved orally about Vaughn having been assigned near her, the Union's business agent failed to make an effort to settle her grievance, as was required by the union's constitution. Hodge claimed that the union's inaction with regard to the situation was motivated by a desire to cater to predominately male membership. The court held that the EEOC had a colorable claim that the union violated Title VII where it failed to make an earnest effort to settle the member's sexual harassment grievance. The court found that "the business agent's elected position provided a strong reason for him to cater to the prejudices of his overwhelmingly male constituency, and that such a desire was a motivating factor in his failure to adequately assert Hodge's claim against the employer." Thus, the court held that the union was in violation of Title VII.
  4. The plaintiff in Durko v. OI-NEG TV Products alleged that she had been subjected to numerous incidents of harassment, offensive remarks, sex discrimination, and that the union ignored her complaints with regard to these incidents. The union contended that it was the employer's responsibility to take appropriate action in response to complaints of sexual harassment. The district court observed that the union could not legally intentionally avoid asserting discrimination claims. Therefore, the court denied the union's summary judgment motion on the hostile work environment issue.
5. Union liability under Title VII relating to employer policies that suspend grievance procedures of the union
  1. In the case of Johnson v. Palma, Johnson was discharged from employment for continually reporting to work late. When he attempted to process a complaint regarding his discharge, Johnson alleged that he was told that he would not receive adequate union representation unless he withdrew an administrative complaint against his employer. The Union's reason for denying representation was that it had established a good working relationship with representatives of the company and that such a complaint against the company would not help the union and the employer reach a resolution. The court held that Johnson had established a prima facie case of retaliation by showing that his union acquiesced in his employer's policy, which abridged his right to file the administrative complaint alleging that he was terminated based on his race. The fact that the employer had a policy against engaging in a grievance procedure while an administrative charge was pending was not a legitimate reason under Title VII for the union's refusal to go forth with the grievance process.
  2. The court in EEOC v. Board of Governors addressed the issue of whether a collective bargaining agreement with the University Professionals of Illinois Union, which provided that grievances will proceed to arbitration only if the employees refrain from participating in charges or lawsuits under the ADEA, was a violation of Section 4(d) because it was discriminatory on its face. The Court reasoned that to hold for the employer would allow it to deter its employees' exercise of their ADEA rights by imposing adverse employment consequences. Statutory provisions against retaliation such as those in the ADEA and Title VII protect employees' right to participate in protected activity.
6. Union as Representative for Member Against Member Sexual Harassment
  1. Cases involving allegations of member-on-member sexual harassment pose special and delicate challenges for a union. In cases where the victim of sexual harassment directly complains to the employer instead of his/her union, the employer will conduct and investigation that begins by interviewing the accused harasser. At this point, the accused can assert his/her Weingarten rights because the discussion could lead to discipline.
    1. The Supreme Court ruled in NLRB v. Weingarten, that an employee's insistence upon union representation at an employer's investigatory interview, which the employee reasonably believes might result in disciplinary action against him, is protected concerted activity. Accordingly, the disciplining or discharging of an employee for refusal to cooperate in such an investigatory interview without union representation is a violation of Section 8(a)(1) of the National Labor Relations Act.
  2. In its discussion of the source, "contours," and "limits" of the Weingarten rule, the Supreme Court explained that (1) the right to union representation inheres in Section 7's guarantee of the right of employees to act in concert for mutual aid and protection; (2) the right arises only in situations where the employee requests representation; (3) the employee's right to request representation as a condition to participation in the interview is limited to situations where the employee reasonably believes the investigation will result in disciplinary action; (4) exercise of the right may not interfere with legitimate employer prerogatives; (5) the employer may carry on his inquiry without interviewing the employee, thus leaving to the employee the choice between having an interview unaccompanied by his representative, or having no interview and foregoing any benefits that might be derived from one; and (6) the employer has no duty to bargain with any union representative who may be permitted to attend the investigatory interview.
  3. Courts and the NLRB have had difficulty in determining under what circumstances a reasonable basis exists for believing that the investigatory interview will result in disciplinary action. In this regard, the Supreme Court has stated that the inquiry must be based on "objective standards" and upon a reasonable evaluation of all the circumstances, not upon the subjective reaction of the employee.
  4. Once the investigation is complete and the employer finds merits to the claim, the employer is likely to take disciplinary action against the harasser. The harasser may then request that the union file a grievance protesting the discipline. This may pose a conflict for unions which are often asked to contemporaneously represent the victim. In considering the alleged harasser's grievance, while she does not have an absolute right to have her discipline grievance go to arbitration, a union has an obligation to investigate and make a reasonable, good faith judgment when deciding to file a grievance, which may be based on credibility determinations. If the union cannot make the necessary credibility determination, it may elect not to choose between divergent interests and instead pursue separate grievances for each member.
  5. In Catley v. Graphic Communications International Union Local 277-M, the plaintiff, a forklift operator, was terminated without reason. She then filed a charge against the employer and the Union alleging a wrongful discharge, acquiescence in unlawful conduct and a breach of the duty of fair representation. The plaintiff acknowledged that she did not file grievances regarding the alleged harassment incidents, but she claimed that she asked the union stewards if there was anything that could be done. The court concluded that the plaintiff had never sufficiently requested union representation, and thus, could not assert a duty of fair representation claim against the union.
  6. In considering the alleged harasser's grievance, while she does not have an absolute right to have her discipline grievance go to arbitration, a union has an obligation to investigate and make a reasonable, good faith judgment when deciding to file a grievance, which may be based on credibility determinations.
  7. Greater difficulty may arise, however, where the victim and the harasser both rely upon the union for assistance in handling grievances relating to sexual harassment claims. In this scenario, it will be both necessary and proper for a union to make its own determination about the credibility of the employees involved in a dispute, and following some investigation of the claim, take a position favoring the employee found to be credible.
  8. In Greenslade v. Chicago Sun Times, the court held that the union did not breach its duty of fair representation or violate Title VII when it decided not to arbitrate the case of the employee charged with sexual harassment, based on an extensive investigation which found that the harasser's actions towards his co-worker were inappropriate, that the Sun-Times did not violate any agreement when it transferred Greenslade, and that the Guild could not successfully challenge the merits of the paper's decision in an arbitration. The record evidenced a detailed and thorough investigation without bias.
  9. Because most cases are based on scenarios between the victim and the accused with no independent witnesses, credibility issues can be very difficult to resolve. For example, in King Soopers, Inc. and United Food and Commercial Workers Union, Local 7, FMCS, the arbitrator found in favor of the alleged harasser, based on credibility issues. In King, the grievant was suspended for two weeks without pay by the company for allegedly sexually harassing fellow employees. His principal accuser's accusations led to his suspension. However, once her accusations came to light, two other employees came forward and complained about certain things that the grievant had done to them in years past which they felt were also sexually harassing. Management used these other complaints to support the reliability of the principal accuser's claims and to underscore the seriousness of the accusations by showing that there was more than one isolated incident involved. The union contended that even if the grievant was guilty of some sort of misconduct towards others in the past, that did not mean that he was guilty of the conduct he was charged with by this accuser. After a full investigation into the accuser's and the grievant's credibility, the arbitrator found that the grievant did not sexually harass anyone and that the company therefore did not have just and sufficient cause to issue him the suspension.
  10. If the union cannot make the necessary credibility determination, it may elect not to choose between divergent interests and instead pursue separate grievances for each member. In Hellum v. Quaker Oats, Co., a union's provision of separate representation for all employees disciplined for involvement in a fight did not constitute a breach of duty. Unions can also create a "Chinese wall" or a "cone of silence" by assigning two representatives, one to work with the victim and the other assigned to the accused, who both deal with the employer. Provided that the representatives are silent as to each side, this situation could ensure that the union's duties are satisfied.
7. Arbitration:
  1. Unions should be aware of the impact of arbitration in a sexual harassment case on a member's right to a statutory remedy under Title VII. An important question is whether an individual can waive his/her statutory right to bring a Title VII claim by first agreeing to arbitrate the issue. Unless a union member enters into a collective bargaining agreement (CBA) which "clearly and unmistakably" waives a member's right to pursue the sexual harassment claim in court, the member would be entitled to initiate both the grievance procedure and federal claim.
  2. In Alexander v. Gardner-Denver Co., the Supreme Court held that an employee who had unsuccessfully grieved and arbitrated his termination as racially discriminatory could subsequently bring a Title VII lawsuit. The Court distinguished an employee's individual statutory rights from his contractual rights under the CBA. The Court also emphasized the tension between collective representation and individual statutory rights.
  3. In 1991, the Supreme Court, in Gilmer v. Interstate/Johnson Lane Corp., held that a securities representative's age discrimination claim against his employer was subject to mandatory arbitration pursuant to the arbitration agreement in the securities registration application. In distinguishing this case from its earlier decision in Gardner-Denver, the Court emphasized that the previous case involved a CBA whereas in Gilmer, the individual employee had agreed to the terms of the arbitration agreement.
  4. In Wright v. Universal Maritime Service Corp., the Court held that a general arbitration clause contained in a CBA does not require arbitration of ADA claims. In Wright, the employer claimed that a longshoresman was precluded from bringing an ADA suit by the arbitration provisions of the CBA and Longshore Seniority Plan. The Court held that the normal interpretive rule applicable to CBAs that presumes that a dispute is arbitrable does not apply to statutory discrimination claims. "Not only is petitioner's claim not subject to a presumption of arbitrability; we think any CBA requirement to arbitrate must be particularly clear." Although the Court was not asked to address the enforceability of a union-negotiated waiver of an employee's right to a judicial forum, the Court noted in dicta that a waiver must be clear and unmistakable.
  5. Following this line of reasoning, unless a union member signs a collective bargaining agreement which "clearly and unmistakably" waives his/her right to pursue the sexual harassment claim in court, he/she would most likely be entitled to initiate the grievance procedure and/or the federal claim. In Renteria v. Prudential Insurance Co., the U.S. Court of Appeals for the Ninth Circuit held that there was no express waiver of employee's statutory remedies for sexual harassment claims in the written agreements prepared by Prudential. The court further held that employee could not be compelled to arbitrate her Title VII and related state law claims because there was no knowing, express waiver of her statutory remedies pertaining to sexual harassment in the written agreements.
  6. Similarly, in Paris v. Dallas Airmotive Inc., the Court declined to enforce the arbitration clause in plaintiff's employment agreement. Plaintiff filed a Title VII sexual discrimination claim and Defendant moved to dismiss for lack of subject matter jurisdiction because plaintiff's employment agreement mandated arbitration. In rejecting the terms of the contract as applied, the Court reiterated that any waiver of rights in the agreement must contain "clear and unmistakable" language that the parties intend to waive a statutorily protected right. Under that standard, the Court found the arbitration clause insufficient as it failed to warn employees of their waiver of statutory discrimination claims.

Relief Available
1. Back Pay: Section 706(g) of Title VII authorizes back pay relief in actions under Title VII and the ADEA where the court finds that the respondent has engaged in discriminatory employment practices. Back pay relief is also available in actions brought under the ADA. A plaintiff who has been denied an employment opportunity based on a discriminatory motive is ordinarily entitled to an award of back pay, which should be the difference between actual wages and the wages the plaintiff would have earned absent discrimination. In Abermarle Paper Co. v. Moody, the Supreme Court set forth the presumption of back pay because back pay is an integral part of the primary objective of Title VII to deter unlawful employment practices, in that "[i]t is...the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination."
2. Front Pay: In the context of an employment discrimination case, "front pay is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement." While reinstatement is the preferred method of compensation for future damages, it is often not feasible "because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result of the discrimination, courts have ordered front pay as a substitute for reinstatement."
3. Punitive Damages: 42 U.S.C. § 1981a limits the availability of compensatory and punitive damages awards to cases of "intentional discrimination." Section 1981a(b)(1) further qualifies the availability of punitive damage awards: "A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." The terms "malice" or "reckless indifference" pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.
4. Compensatory Damages: To qualify for non-economic damages, a plaintiff must demonstrate that he or she sustained non-economic injuries caused by the defendant's unlawful conduct, such as emotional distress, pain and suffering, harm to reputation, and other consequential injury.
5. Declaratory Relief: Pursuant to the Civil Rights Act of 1991, certain injunctive relief may be awarded in mixed motive discrimination cases where it is proven that discrimination was a factor in the employer's decision, but that the employer would have made the same decision absent such discrimination.
  1. Civil Rights Act of 1991: In a mixed motive case, "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." With regard to remedies available to a mixed motive plaintiff, 42 U.S.C. § 2000e-(g)(2)(B) provides: "On a claim in which an individual proves a violation under [42 U.S.C.S. § 2000e-2] and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court-- (i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under 42 U.S.C.S. § 2000e-2(m); and (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A)."
  2. Desert Palace, Inc. v. Costa — The plaintiff presented evidence that (1) she was stalked by a supervisor, (2) she received harsher discipline than men, (3) she was treated less favorably than men in the assignment of overtime, and (4) supervisors stacked her disciplinary record and used or tolerated sex-based slurs against her. The district court gave a mixed-motive instruction to the jury because under 42 U.S.C.S. § 2000e-2(m), the employee did not need to present direct evidence of discrimination in order to obtain a mixed-motive instruction, rather only had to "demonstrate" that the employer used a forbidden consideration with respect to any employment practice. Consequently, a plaintiff only needs to present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that race, color, religion, sex, or national origin was a motivating factor for any employment practice.
Practical Tips
1. For Employers:
  1. Implement an anti-harassment policy and train relevant personnel:
    1. Every employer should create, publish and effectively distribute to all employees a policy describing and forbidding all forms of unlawful harassment, as well as retaliation against employees who report harassment. The policy should include a definition of harassment, examples of prohibited behavior, a description of who the policy applies to, a complaint procedure, assurances of complainant's protection, and what disciplinary action the harasser will face if found to have violated the policy. The statement should specifically address harassment by third parties, such as customers. The statement should require, or at least encourage, anyone who witnesses or experiences behavior in violation of the policy to report such conduct.
    2. A complaint procedure should be established which provides that an employee may report a violation of the policy to an individual outside of the employee's chain of command who have authority to resolve, or to recommend a resolution of, the problem. Providing an employee with individuals outside of her chain of command is necessary in the event that it is her supervisor that is the harasser.
    3. The statement should also advise the employee that all reports of harassment will be investigated and that disclosures will be made only to the extent necessary to investigate and resolve the problem, or as required by law.
    4. Once the policy has been created the employer should broadly disseminate it throughout the workforce. Even the best anti-harassment policy provides little protection to an employer if it is not disseminated properly to employees. In addition to distribution of the policy, it should be included in the employee handbook, be posted, mailed out periodically, and the subject of periodic discussion in meetings and training sessions. It is especially important to train managers and supervisors.
  2. Conduct investigations promptly and efficiently:
    1. When becoming aware of a complaint of unlawful harassment, the employer should respond both promptly and effectively to each and every complaint. This includes conducting a proper investigation that is designed to discover the truth so that any violation of the policy can be remedied.
    2. Investigators must be impartial, properly trained and preserve all evidence confidentially, to the extent feasible.
    3. Employers should be careful in selecting and training personnel designated to receive and respond to reports of harassment, as when a person designated by the employer to receive such reports learns of the harassment, knowledge of the harassment is imputed to the employer even if the person to whom the report was made fails to follow through with her responsibility to report it further or to take action on the complaint.
    4. It may be necessary to take intermediate action while the investigation is proceeding to ensure that further harassment does not occur such as separating the alleged harasser and the victim.
  3. Remedial measures:
    1. Remedial measures should be designed to stop the harassment and correct its effects on the employee. The severity of the discipline should depend on the severity and frequency of the harassment, prior complaints and/or the quality of the evidence.
    2. Take appropriate disciplinary action with respect to the alleged harasser. While firing is not always necessary, nor always appropriate, the action taken should be significant and proportional to the severity of the harassment.
    3. Both parties should be informed of the employer's conclusion. Possible forms of discipline include transfer, demotion, reduction of wages, suspension or discharge. Employers should be careful about disciplinary suspensions for FLSA exempt employees.
    4. It is also appropriate to make the victim whole by restoring any lost wages, job benefits or job opportunities.
  4. Avoid retaliation:
    1. Take action to prevent retaliation against the complaining employee, such as oversight of future employment decisions or removing the harasser from the victim's workplace.
  5. Consult counsel early in the process:
    1. To ensure that an employer is taking the appropriate steps to address and remedy a complaint of harassment, the employer should consult counsel as early in the process as possible.
2. For Unions:
  1. Educate:
    1. Unions should strive to provide training to officers, staff and stewards regarding harassment and appropriate union responses.
  2. Conduct thorough and prompt investigations:
    1. Unions should not overlook any complaint of harassment. They should respond promptly and seriously to each complaint when learning of harassment.
    2. Unions should be willing to investigate complaints thoroughly and make reasoned credibility judgments. In the alternative, the union should provide union representation to the victim through the grievance procedure as it relates to discrimination and to the alleged harasser in relation to any discipline received.
  3. Use grievance procedures:
    1. Unions should avoid the mistake of failing to use grievance procedures for discrimination issues. A policy of doing this can violate Title VII and also potentially the union's duty of fair representation.
  4. Avoid retaliation.
  5. Consult counsel early.
3. For Employees:
  1. Follow complaint mechanisms:
    1. When an employee experiences harassment of any kind or of any degree, he should immediately report it to the appropriate person or persons, as designated in the employer's anti-harassment policy. Failure to do so may result in an employer successfully raising the Faragher/Ellerth affirmative defense in cases of supervisory harassment if there has been no tangible employment action, or the defense that the employer was not negligent, in cases of co-worker harassment.
  2. Record any and all instances of harassment in detail:
    1. An employee should record, in detail, all instances of harassment, including the date and time, the name of the individual or individuals who engaged in the harassing behavior, what was said or done, where the harassment took place, and the names of any individuals who witnessed the harassment.
    2. An employee should record these details as close in time as possible to the harassment to ensure an accurate and detailed recollection of the harassment.
  3. Follow all employee rules and procedures:
    1. Upon experiencing harassment of any kind, an employee should make every effort to follow all employee rules and procedures. Following all rules and policies will assure that an employer will have no reason to terminate an employee after experiencing or complaining of harassment.
    2. This will also ensure that an employer, in a subsequent lawsuit, will be unable to raise a disciplinary violation as the reason for terminating an employee who experienced or complained of harassment.
  4. Be cognizant of any retaliatory treatment.
  5. Consult counsel early.