Sexual, Racial, and Other Harassment and Discrimination

SEXUAL, RACIAL AND OTHER
HARASSMENT AND DISCRIMINATION

Prepared in connection with the seminar, "Employment Law: Beyond the Basics," presented by Sterling Education Services, LLC in Chattanooga, Tennessee on September 20, 2012

The law of harassment in employment (whether sexual or otherwise) has been fairly well defined since the Supreme Court's landmark cases in 1998, Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). In the fifteen years before the Faragher and Ellerth decisions, the U.S. Supreme Court had decided a number of other cases which established the basic parameters of an actionable harassment claim. Most of the cases were in the area of sexual harassment, but their reasoning and rules typically also applied in the context of other types of harassment.

Title VII makes harassment in the workplace unlawful if it is based upon an individual's race, color, religion, sex, or national origin. Although the Americans with Disabilities Act (ADA) does not expressly refer to harassment on the basis of disability, several courts which have considered the question have indicated that employees may sue under the ADA for harassment stemming from a protected disability. See., e.g., Flowers v. Southern Regional Physician Services, Inc., 247 F. 3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F. 3d 169 (4th Cir. 2001); Huge v. General Motors Corp., 2003 U.S. App. LEXIS 6263 (6th Cir., 2003). Likewise, while the Age Discrimination in Employment Act (ADEA) does not expressly refer to harassment based upon age, the EEOC and some federal courts have held that age-based harassment is a violation of the ADEA. See., e.g. Baqir v. Principi, 434 F. 3d 733 (4th Cir., 2006).

To summarize, unlawful and legally actionable harassment based upon a protected class involves:

• Unwelcome behavior

• Which is sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive work environment

• The work environment must be "objectively" abusive (i.e., it would be viewed as such by an ordinary person)

• The work environment must be "subjectively" perceived as abusive (i.e., it is viewed as such by the claimant)

• Title VII is not intended as a "general civility code" for the workplace

• The offensive conduct need not be motivated by sexual desire; rather, it must expose members of the protected class to disadvantageous terms or conditions of employment to which employees outside the protected class are not exposed

• The old dichotomy of "hostile work environment" and "quid pro quo" harassment has been replaced by an evaluation as to whether the offensive conduct was committed by a supervisor and resulted in a tangible job detriment (in which case liability is automatic under respondeat superior and agency law principles) versus situations where the offensive conduct was committed by a non-supervisor or did not result in a tangible job detriment (in which case liability is based upon whether and how the employer attempted to prevent the harassment or responded to it once it became aware of it, sometimes called the "negligence standard")

Primer on basic harassment law. What is commonly called "sexual harassment," "racial harassment," "national origin harassment," and the like is actually a subset of unlawful employment-related discrimination generally. Title VII prohibits discrimination by an employer "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). In Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), the Supreme Court held "that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." 477 U.S. at 66. The Court further explained that "not all workplace conduct that may be described as 'harassment' affects a 'term, condition, or privilege' of employment within the meaning of Title VII." 477 U.S. at 67. The Court continued: "[F]or sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'" Id. (emphasis added). The Court in Meritor also noted that, in order to prevail on a hostile work environment sexual harassment claim, the employee must have indicated by his or her conduct that the alleged sexual advances were "unwelcome."

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993), the Supreme Court held that offensive conduct creating an unlawful hostile working environment must be "severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive," and also must be subjectively perceived by the victim as abusive, in order for there to be a Title VII violation. 510 U.S. at 21-22. The Court also clarified that to be unlawful under Title VII, the conduct in question need not seriously affect a reasonable person's psychological well-being. 510 U.S. at 22. Finally, in Harris the Court held that "whether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." 510 U.S. at 23 (emphasis added).

In Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998), the question before the Court was whether workplace harassment could be "because of sex," and thus in violation of Title VII, if "the harasser and the harassed employee are of the same sex." The Court held that "nothing in Title VII necessarily bars a claim of discrimination 'because of... sex' merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex." Addressing the criticism that recognizing same-sex sexual harassment would turn Title VII into a "general civility code for the American workplace," the Court noted:

Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at "discrimination... because of... sex." We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have a sexual content or connotations. The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.

Likewise with regard to the fact that Title VII is not a "general civility code," the Court in Oncale noted:

[T]he statute does not reach genuine but innocuous differences in the way men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the "conditions" of the victim's employment. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive – is beyond Title VII's purview.

The Court also noted that in determining whether conduct has been objectively offensive (i.e., from the perspective of a reasonable person), the inquiry requires "careful consideration of the social context in which particular behavior occurs and is experienced by its target." Finally, the Court in Oncale reiterated that "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex."

In Faragher (1998) and Burlington Indus. (1998), the Court clarified standards of employer liability when a supervisory employee sexually harasses a subordinate employee, both when the employee has suffered a resulting "tangible job detriment," and when the employee has suffered no such "tangible job detriment." The Court held:

An employer is 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, subject to proof by a preponderance of the evidence, see Fed. R. Civ. P. Rule 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

* * *

No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Faragher, 524 U.S. at 807-08 (emphasis added).

The Court in Faragher also noted that "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'" Faragher, 524 U.S. at 778 (1998).

In Ellerth, the Supreme Court likewise reiterated the above holding, but also explained that the long-standing dichotomy of "quid pro quo" and "hostile work environment" sexual harassment is not controlling. Instead, those terms are only relevant to the extent they "illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general." 524 U.S. at 753. The Court in Ellerth also clarified the types of conduct which can be characterized as "tangible employment action," so as to warrant automatic liability, noting that "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." 524 U.S. at 761. Since tangible employment actions resulting from sexual harassment can only be accomplished by a supervisory employee, and they constitute actions of the employer, liability is automatic. On the other hand, when a supervisor has engaged in actionable behavior, but there has been no tangible job detriment, the employer has the opportunity to prove the affirmative defense discussed above.

In Clark County School District v. Breeden, 532 U.S. 268, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001), the Supreme Court reiterated and summarized its prior holdings (discussed above) in finding that, under the facts of that case, no reasonable person could have believed that the "single incident" of alleged sexual harassment as issue would violate Title VII.

In 2003 the Supreme Court clarified what is a "tangible employment action" for purposes of analysis under the rules set forth in Faragher and Ellerth. The Court's decision in Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (2004) addressed the question of whether an employee's claim of "constructive discharge" based upon alleged actions by a supervisory employee would suffice as a "tangible employment action" under Faragher and Ellerth, such that the affirmative defense would be unavailable to the employer. The Court reiterated earlier holdings regarding what constitutes "constructive discharge," stating that where an employee resigns employment because conditions have become so intolerable that a reasonable person (i.e., objective standard) would feel compelled to resign." If the conduct or working conditions in question, which caused the employee to resign, involved an employer-sanctioned official change in employment status (such as a humiliating demotion, cut in pay or transfer), then it is considered a "tangible employment action" such that the rule of strict liability will apply, and no affirmative defense is available to the employer. However, where the employee has resigned for reasons not involving an official, employer-sponsored change in status, then the alleged constructive discharge does not equate to a "tangible employment action," and the employer may seek to prove and rely upon the affirmative defense.

Prevalence of Harassment Claims. By far the most harassment claims which are filed involve allegations of sexual harassment. From 2009 through 2011, the EEOC reports that almost 35,000 sexual harassment claims were filed in the United States, and "reasonable cause" determinations were reached in 6.6% of those cases. During that same period (2009-2011), the EEOC reported that more than 25,000 cases of race-based harassment were filed, and "reasonable cause" determinations were reached in 5.9% of those cases. See http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

These figures do not take into account sexual harassment and racial harassment claims filed under states' human rights laws and which were not referred to the EEOC, or lawsuits which were filed in state courts without an administrative filing.

A. RECENT LEGISLATION AND COURT CASES.

Changes in Tennessee Summary Judgment Law. The most important recent change in the law of harassment for Tennessee employers and employment lawyers does not involve legislation specifically aimed at employment discrimination. Rather, the most important change involves a refinement of summary judgment standards under Tennessee law.

Over the course of several years, the Tennessee Supreme Court had imposed limitations and restrictions on summary judgments in Tennessee which took Tennessee law out of alignment with federal law, and which made it difficult (if not impossible) for an employer to prevail on a summary judgment motion in a case in Tennessee state court. Since at least the Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), Tennessee law did not permit a defendant to challenge a plaintiff to "put up or shut up" in seeking summary judgment, even though the federal counterpart summary judgment rule did allow that type of summary judgment argument under the familiar McDonnell-Douglas burden shifting analysis. In fact, the Tennessee Supreme Court had specifically ruled in Gossett v. Tractor Supply, Inc., 320 S.W.3d 777 (Tenn. 1999) that McDonnell-Douglas burden shifting was "incompatible with Tennessee summary judgment jurisprudence." As a result, summary judgments in employment cases filed in Tennessee state courts were a virtual impossibility.

Effective July 1, 2011, the Tennessee legislature has taken Tennessee "back to" the federal standard for summary judgments with the passage of Tenn. Code Ann. §20-16-101 (which will only apply to actions filed on or after July 1, 2011).

Companion legislation effective June 10, 2011 also clarifies that this same standard is applicable in employment-related cases involving claims of discrimination or retaliation, which are thereafter governed by the familiar federal McDonnell Douglas standard. The new legislation amends Tenn. Code Ann. §§ 4-21-311 and 50-1-304, and it provides that the federal McDonnell Douglas standard is to be applied in all cases filed after the effective date involving Tennessee state claims of employment discrimination or retaliation, including at the summary judgment stage.

Racial Harassment Generally

Racial harassment was actually the original type of harassment recognized as unlawful, beginning with the case of Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972). In that case, Josephine Chavez, a Hispanic employee, filed a discrimination charge against her employer, an optical service, claiming that the employer segregated patients by their race and created an "atmosphere that would adversely affect the terms and conditions of her employment and thus have an effect that is proscribed by Title VII." The Fifth Circuit held that Title VII was to be liberally construed to achieve its anti-discriminatory purpose, so it accepted the then-novel claim based upon an abusive working environment based on race. Although the Court did not use the terms "harassment" or "hostile environment," other courts following this ruling began using these terms to describe the unlawful conduct in violation of Title VII.

In addition to Title VII claims, some racial harassment claims are also filed or pursued under two post Civil War statutes, Sections 1981 and 1983 of the Civil Rights Act of 1866. These additional statutory violations are most often alleged together with Title VII claims. Since 1991, the provisions of the Civil Rights Act of 1991 are also applicable.

While the applicable legal standards for racial harassment and sexual harassment are analogous, some commentators point out that strictly applying sexual harassment legal standards in a racial harassment case may lead to skewed results. See, e.g., Chew, "Unwrapping Racial Harassment Law," 27 Berkeley J. Emp. & Lab. L. 49 (2006).

According to the empirical data contained in the Chew law review article, by far the largest group filing racial harassment charges is African-Americans at almost 82%. Surprisingly, the next largest group is White Americans (8.6%), followed by Hispanics and Asians (4.7% each). Very few such charges are filed by Native Americans (0.4%). With regard to the job positions of the charging parties, 20% are in management and professional categories, while 80% are in service and support occupational categories. The largest occupational group filing such charges is office and administrative supervision positions (with over 20% of all plaintiffs), which include secretaries, office assistants, computer operators, drafters, and phone operators; followed by employees in production, which includes assemblers, fabricators, machinists, welders, food processing, textile production, and woodworkers. Many plaintiffs are long-term employees, and the average tenure of the employee making a racial harassment charge is 8.4 years. This runs contrary to the typical notion that co-workers may be more likely to harass strangers or newcomers in the workplace.

According to the same article, the most common fact pattern among filed charges involves a White supervisor harassing a minority employee. However, also surprisingly, 3.1% of cases involve same-minority harassment, 3.5% involve minority on other minority harassment, and 3.8% involve minority on White harassment. 81% of cases involve primarily verbal harassment (jokes, epithets, etc.), while nearly 23% involve use of physical objects (a noose, photo, flag, Swastika, etc.).

Finally, the Chew article explains the success rate of racial harassment claims as follows: "When all the cases in the study are considered, plaintiffs are successful in 21.5% of the cases and defendants are successful in 81% of the cases. Thus, defendant employers are much more likely to "win" than plaintiff employees. Furthermore, this study indicates that plaintiffs fare worse in racial harassment cases than in sexual harassment cases."

EEOC's Listing of Significant Racial Harassment Charges Since 2009. The EEOC has published on its web-site a listing of selected racial harassment cases since 2009. See http://www.eeoc.gov/eeoc/litigation/selected/racial_harassment.cfm. The listing provides some interesting insights into recent racial harassment cases. Examples from the EEOC web-site include:

RESOLVED CASES:

Whirlpool Corporation: (M.D. Tenn.) resolved 6/12/12 by Memphis District Office – The Commission alleged that Whirlpool violated Title VII of the Civil Rights Act of 1964 when it did nothing to stop a white male co-worker at a Whirlpool plant in LaVergne, Tenn., from harassing an African-American female employee because of her race and sex. The abuse lasted for two months and escalated when the co-worker physically assaulted the black employee and inflicted serious permanent injuries. During a four-day bench trial, the court heard evidence that the employee repeatedly reported offensive verbal conduct and gestures by the co-worker to Whirlpool management before she was violently assaulted, without any corrective action by the company. The trial also established that the employee suffered devastating permanent mental injuries that will prevent her from working again as a result of the assault. At the conclusion of the bench trial, the judge entered a final judgment and awarded the employee a total of $1,073,261 in back pay, front pay and compensatory damages on December 21, 2009. Whirlpool filed a motion to alter or amend the judgment on January 15, 2010 which the district court denied on March 31, 2011. On April 26, 2011, Whirlpool appealed the judgment to the U.S. Court of Appeals for the Sixth Circuit. The company withdrew its appeal on June 11, 2012 and agreed settle the case with the EEOC and plaintiff intervener for $1 million and court costs. The plant where the discrimination occurred had closed during the litigation period.

Williams Country Sausage: (W.D. Tenn.) resolved 8/10/11 by Memphis District Office – The Commission alleged that Williams Country Sausage violated federal law by paying an African-American maintenance worker less than white counterparts and subjecting him to a hostile work environment. The EEOC asserted that Williams Country Sausage gave raises and paid higher salaries to all maintenance department employees except the department's lone African-American employee and allowed a supervisor to regularly use racially offensive language toward the employee because of racial animus. Williams Country Sausage agreed to pay $60,000 to resolve the lawsuit. In addition to monetary relief, the five-year consent decree enjoins Williams Country Sausage from further discriminating against employees on the basis of race. The decree requires annual training on employee rights under Title VII and requires Williams Country Sausage to maintain records of racial harassment complaints and provide annual reports to the EEOC. The decree also requires Williams Country Sausage to establish and enforce a written policy that will ensure that employees are protected from discrimination and post a notice to all employees about the lawsuit that provides the EEOC's contact information.

Jack In The Box: (M.D. Tenn.) resolved 5/15/09 by Memphis District Office – The Commission alleged that Jack in the Box subjected a hostess to harassment because of her race (white) at its restaurant in Nashville, and failed to take prompt action to end the harassment when she complained about it. Several African American coworkers repeatedly called the white employee by obscene racial epithets. They also allegedly further insulted her when they learned she was pregnant with a mixed-race baby. Jack in the Box will pay $20,000 compensatory damages and provide other relief, which requires that Jack in the Box provide employment discrimination awareness training to all of its employees, supervisors, and management at the restaurant where the white employee was employed. Additionally, the restaurant will maintain records of all complaints made of racial harassment at the restaurant where she was employed and submit reports to the Commission regarding these complaints.

PENDING CASES:

U-Haul: (W.D. Tenn.) filed 9/28/11 by Memphis District Office – The Commission alleges that African-American employees, were subjected to racially offensive comments by a white supervisor and other employees. A U-Haul supervisor regularly referred to African-American employees with the "N-word" and used other derogatory slurs. In addition, the EEOC further alleges that a parts room employee subjected the African-American employees to the same offensive behavior by using racial slurs and refusing to let African-Americans enter the parts room.

Northern Star Hospitality D/B/A Sparx Restaurant: (W.D. Wisc.) filed 3/27/12 by Chicago District Office – The Commission alleges that Sparx, a Menomonie, Wis. restaurant, managers posted racist imagery and then fired an African-American employee after he complained about a picture of African-American actor Gary Coleman and a dollar bill which had been defaced such that a noose was around the neck of George Washington, whose face had been blackened, taped to a cooler in restaurant. The EEOC also alleged that, on the dollar bill, were swastikas and the image of a man in a Ku Klux Klan hood. Sparx managers told the Charging Party that they had posted the images the evening before but, when the Charging Party complained, insisted that it was "a joke." The Charging Party was terminated within weeks of complaining about the racist imagery, for allegedly having "a bad attitude."

Day & Zimmerman NPS: (E.D.N.Y.) filed 9/29/11 by New York District Office – The Commission alleges that a foreman at Day & Zimmerman's Carlos Poletti Power Plant in Astoria, Queens, subjected an African-American employee to ongoing harassment, including physical harassment. The Commission alleges the misconduct included often kicking the African-American employee in the buttocks and frequently tripping him at work, as well as making racially offensive comments such as "black folks deserve to get shot", "black folks are good at basketball because they can steal and shoot" and "blacks are the worst people in the world." The foreman also told racist jokes in the workplace. The Commission further alleges Day & Zimmerman fired Hughes just two days after he complained about the harassment.

Sexual harassment – recent lessons. There is never a shortage of "interesting" sexual harassment cases. As is noted above, the "basics" of sexual harassment law are fairly well-settled. Application of the legal standards to unique factual situations is sometimes difficult. As most employers' lawyers know, it is difficult to predict the outcome of any sexual harassment cased based upon a simple review of the facts, because for every reported case involving a similar fact pattern where the employer wins, there is probably another reported case involving a similar fact pattern where the employer loses.

One developing area in sexual harassment law involves the "digital workplace" and the applicability if the Faragher and Ellerth affirmative defenses to cases involving "digital workplace" harassment, such as by use of e-mails, text messages, uploaded videos, and the like. In Blakey v. Cont'l Airlines, Inc., 751 A.2d 538, 551-52 (N.J. 2000), a female pilot claimed that she suffered from a hostile work environment by being the subject of a series of harassing and defamatory messages posted on an internet bulletin board accessible to all Continental pilots and crew members, even though the employer did not create or maintain the on-line bulletin board. The court agreed that this was a valid sexual harassment complaint, finding that the employer had notice of the sexual harassment and that the electronic bulletin board was integrated into the workplace to such a degree that Continental had a duty to correct off-site sexual harassment by coworkers. The court stated that although "employers do not have a duty to monitor private communications of their employees," they "do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know" of the sexual harassment.

As one commentator notes:

The majority of large corporate employers in the United States currently use monitoring and blocking software that allows them to observe and block inappropriate digital communications over corporate information technology networks before the intended recipient receives them…. The ability and the right to monitor all employee digital transmissions places employers in an ideal position to take simple, proactive measures to prevent most instances of digital sexual harassment…. The rights and abilities of employers to read digital communications sent and received by employees should compel courts to extend the holdings of Ellerth and Faragher…. Because employers who use blocking and monitoring technology have notice of potential digital sexual harassment before it reaches the intended recipient, employers should bear the burden to provide reasonably sufficient technical protection that limits exposure to such sexual harassment…. many courts have yet to address whether an employer should be entitled to plead an affirmative defense to digital sexual harassment claims when the employer has failed to monitor the digital work environment, prevent digital sexual harassment, or institute mechanisms to facilitate employee complaints of digital sexual harassment.

Garrie, "Limiting the Affirmative Defense in the Digital Workplace," 19 Mich. J. Gender & L. 229 (2012).

Tennessee law. Sexual harassment is not only unlawful under federal law (assuming the employer is covered by Title VII), but it is also unlawful in Tennessee under the Tennessee Human Rights Act (THRA) for employers with eight (8) or more employees. In essence, Tennessee courts applying the THRA have adopted the same legal standards which apply in Title VII cases (including summary judgment standards for cases filed after July 1, 2011, now that the legislature has statutorily modified Tennessee's summary judgment procedures, as discussed earlier).

Two fairly recent Tennessee reported opinions provide excellent summaries of how sexual harassment cases are analyzed under the THRA: (1) Allen v. McPhee, 240 S.W. 3d 803 (Tenn. 2007); and (2) Gordon v. W.E. Stephens Mfg. Co., 2008 Tenn. App. LEXIS 537 (Tenn. App., M.D. decided September 16, 2008).

In Allen, the Tennessee Supreme Court considered a hostile work environment sexual harassment claim by an administrative assistant to the President of Middle Tennessee State University. The employee claimed that the University President tried to kiss her at a golf tournament and then placed his hand under her shirt and touched her on the side; that on another occasion he rubbed her neck and back and tried to kiss her, as well as rubbing her upper thigh; that he required her to dance with him behind a locked office door; and similar, alleged other incidents. The Court discussed the Faragher and Ellerth affirmative defenses, finding that summary judgment for the employer was improper because of factual questions.

In Gordon, the Court of Appeals considered a case in which a male supervisor discussed an erotic dream with a female subordinate, touched her on her back, stroked her hair, commented on the way she smelled, and generally started coming around her at work more often. The employee complained and the company told the supervisor to stay away from the employee. The employee claimed that she was then retaliated against, and she resigned, then sued under the theory of a hostile work environment. The employer pled the Faragher and Ellerth affirmative defenses. The Court noted that "the THRA is to be interpreted coextensively with Title VII," and it then provided a detailed and useful analysis of the elements of sexual harassment claims, reversing a directed verdict which had been rendered in favor of the employer.

B. DOMESTIC PARTNERSHIP ISSUES.

Sexual Orientation and Gender Identity Discrimination. Currently sexual orientation and gender identity are not "protected classes" under and federal law, so there is no federal prohibition on discrimination on these bases. A number of states and local governments do prohibit discrimination on these bases. The Employment Non-Discrimination Act ("ENDA") was introduced in Congress in 2009, but it has been stalled in committees in both houses of Congress.

C. HARASSMENT vs. DISCRIMINATION.

As is noted above, "harassment" is actually a sub-set of general discrimination law (Title VII, the ADA, the ADEA, etc.). Therefore, actionable, unlawful harassment must be "because of" one's membership in one of the protected classes (e.g., gender, race, age, disability, etc.). See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). Moreover, Oncale cautions that Title VII is not intended to be a "general civility code" for the workplace. While many employees may work in hostile, abusive, crude and boorish workplaces, it is only when the hostile environment can be linked to a protected class that it becomes legally actionable.

The remainder of the discussion of "harassment vs. discrimination" is subsumed in the other sections of this article.

D. IS IT QUID PRO QUO, HARASSMENT, OR JUST OBNOXIOUS BEHAVIOR?

As is noted above, in Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998), Justice Scalia discussed the employer's contention that Title VII is being turned into a "general civility code" for the workplace, noting:
[i]n . . . harassment cases, . . . [the] inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player's working environment is not severely or pervasively abused, for example, if the coach smacks him on the buttocks as he heads onto the field-even if the same behavior would reasonably be experienced as abusive by the coach's secretary . . . back at the office. . . . Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.

Oncale, 523 U.S. at 81-82.

As Justice O'Connor had noted in Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993), the "severe or pervasive" test handed down by the Supreme Court "is not, and by its nature cannot be, a mathematically precise test."

When is severe, but infrequent, conduct actionable? In Carrero v. New York City Housing Authority, 890 F.2d 569, 578 (2d Cir. 1989), the defendant employer had argued that "federal law does not punish 'trivial behavior' consisting of only 'two kisses, three arm-strokes,' several degrading epithets and other objectionable-but ultimately harmless-conduct." The Circuit Court "emphatically rejected" the argument, noting: "a female employee need not subject herself to an extended period of demeaning and degrading provocation before being entitled to seek the remedies provided under Title VII. It is not how long the sexual innuendos, slurs, verbal assaults, or obnoxious course of conduct lasts. The offensiveness of the individual actions complained of is also a factor to be considered in determining whether such actions are pervasive."

Many other courts have found that even relatively few incidents of harassing conduct can meet the severe or pervasive test when that conduct is particularly offensive or egregious. As to how many incidents constitute pervasive behavior, courts have repeatedly cautioned that "there is neither a threshold 'magic number' of harassing incidents that gives rise, without more, to liability as a matter of law nor a number of incidents below which a plaintiff fails as a matter of law to state a claim." Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993). In that case, the court found that four remarks, only one of which was directed at the plaintiff, were sufficient to create a racially hostile work environment. The analysis focused on one comment in particular that the court found to be especially hostile: a "motivational speech" (as the defendant characterized it) in which the district sales manager told the plaintiff's employees that "[y]ou black guys are too f*** dumb to be insurance agents."

These cases show that a significant showing of severity can overcome a relative lack of frequency (or "pervasiveness") of the conduct, including when the conduct in question is only verbal harassment. When the conduct in question involves physical touching, the Supreme Court's decision in Harris implies that harassment that involves the touching of the victim by the harasser carries significant weight in a "severe or pervasive" analysis. After it listed severity and pervasiveness as relevant considerations, the Court suggested that courts might also consider "whether . . . [the discriminatory conduct] is physically threatening or humiliating, or a mere offensive utterance." The EEOC Policy Guidance on Sexual Harassment addressed the issue more explicitly in 1990, asserting that "[t]he Commission will presume that the unwelcome, unintentional touching of a charging party's intimate body areas is sufficiently offensive to alter the conditions of her working environment . . . ."

In Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998), the Court found that the actions of a customer against the plaintiff waitress – grabbing her hair, breast, and putting his mouth on her breast – constituted "physically threatening and humiliating behavior which unreasonably interfered with" the plaintiff's work, and were "severe enough to create an actionable hostile work environment." Likewise, in Jones v. U.S. Gypsum, 2000 WL 196616 (N.D. Iowa Jan. 21, 2000), the Court found that the complaint of a male employee who had been intentionally struck in the groin by a female co-worker (who had struck other male employees similarly in the past) contained "sufficient allegations of a single episode severe enough to create an actionable hostile work environment."

However, cases involving liability for single or limited incidents as constituting sufficiently "severe or pervasive" behavior to constitute sexual harassment are somewhat rare. In one case which is frequently cited by employers' layers, Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000), the Court held that a "reasonable woman" would not consider "the terms and conditions of her employment altered" if a male co-worker touched her bare stomach and then, upon being forcefully rebuffed, trapped her against her desk and forced his hands up her shirt and underneath her bra. Likewise, under similar facts in Demmons v. Fulton County, 2010 WL 3418325 (N.D. Ga. Aug. 2, 2010), the Court found the conduct not legally actionable. See also Del Valle Fontanez v. Aponte, 660 F. Supp. 145, 146-47, 149 (D.P.R. 1987)(holding that a single incident in which plaintiff's employer locked office door and pressed his genitals against plaintiff was insufficiently severe or pervasive as a matter of law).

On the other hand, conduct involving two particular types of physical threats is more likely to be legally actionable: (1) threats that in some way seem to directly relate to the sexual desire of the harasser; and (2) implicit or explicit threats of physical violence that are unrelated to sexual desire. For example, in Nieto v. Kapoor, 268 F.3d 1208, 1219 (10th Cir. 2001), the Court found that a doctor's numerous aggressive acts toward other hospital employees – including instances in which he "yelled at them, pointed his finger in their faces . . . . threw charts, papers, and other objects" at them – were objectively physically threatening, and undoubtedly sufficiently severe to create a hostile work environment." In Conner v. Schrader-Bridgeport International, Inc., 227 F.3d 179, 198 (4th Cir. 2000), the president of the company employing the plaintiff "slammed his clenched fist on his desk and screamed that he would fire her on the spot if she ever mentioned sexual discrimination again" after the plaintiff criticized his response to her allegations of disparate treatment and harassment. The court found this to be a physically threatening, "powerful incident of gender-based intimidation," which, when combined with various other (less severe) instances of harassment, provided "ample support for the jury finding of severe and pervasive conduct . . . . Indeed, in our view, the conduct evidenced here is extreme."

Cases involving frequent, but less severe, conduct may also be actionable. In Aryain v. Wal-Mart Stores Texas L.P., 534 F.3d 473 (5th Cir. 2008), the employee allegedly suffered almost daily sexual comments and advances from her direct supervisor for the entire four-month course of her employment. For example, her supervisor would tell the employee on an almost daily basis that her "butt looks good" and would ask her out on dates almost every day. Other alleged sexual comments occurred with less frequency but were markedly more severe and graphic. Based on the frequency and severity of the comments, the Fifth Circuit Court of Appeals held that the employee's hostile work environment claim could proceed.

In Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139 (11th Cir. 2008), the court revived the employee's claim for hostile work environment sexual harassment even though none of the sexually charged comments in the workplace were directed at her. Among the comments and behaviors the plaintiff faced were her coworker's near-constant use of sexually offensive language, phrases, jokes, songs, comments, and remarks that were generally demeaning toward women. Additionally, her coworkers regularly discussed masturbation, oral sex and sex acts. Further, the office stereo was tuned each morning to a radio show featuring daily discussions of sexually explicit subject matter. The court concluded that, even though this conduct was not directed at the plaintiff individually, it was sufficient to satisfy all of the elements of a hostile work environment claim.

E. WHAT CONSTITUTES A HOSTILE ENVIRONMENT?

As is generally discussed in preceding sections of this article, an employee alleging a hostile work environment must prove that unwelcome conduct created an environment that the employee subjectively perceived as abusive, and that any reasonable person would have perceived as hostile. The offending behavior must have been sufficiently severe or pervasive so as to alter the conditions of employment. The determination of whether conduct has created a legally actionable hostile work environment is made on a case by case basis.

Further detailed consideration of the legal standards for a hostile work environment is subsumed in other sections of this article.

F. EMPLOYER LIABILITY PRINCIPLES AS THEY AFFECT MANAGEMENT OF COMPLAINTS

The affirmative defenses and liability analysis of Faragher and Ellerth make it imperative for employers to adopt good harassment policies, and then to implement them. This should include providing training to employees and supervisors, and then promptly investigating any sexual harassment complaints. If warranted, prompt and effective remedial measures should be undertaken to put an end to any unlawful conduct, and any complaining employee should not be punished or retaliated against. If these general rules are followed, the employer may have an affirmative defense in cases involving alleged harassment by non-supervisory co-workers or by third parties.

In Faragher and Ellerth, the Court clarified standards of employer liability when a supervisory employee sexually harasses a subordinate employee, both when the employee has suffered a resulting "tangible job detriment," and when the employee has suffered no such "tangible job detriment." The Court held:
An employer is 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, subject to proof by a preponderance of the evidence, see Fed. R. Civ. P. Rule 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

* * *

No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Faragher, 524 U.S. at 807-08 (emphasis added).

The EEOC has issued a policy document that examines the Faragher and Ellerth decisions and provides detailed guidance on the issue of vicarious liability for harassment by supervisors. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (6/18/99), available at http://www.eeoc.gov/policy/docs/harassment.html.

In another document available at the EEOC web-site (http://www.eeoc.gov/federal/model_eeo_programs.cfm), the agency provides instructions regarding model EEO policies and "effective anti-harassment programs" for federal agencies. These suggestions are also generally instructive for private employers. They include the following:

Suggestions for Improving Anti-Harassment Policies and Procedures

1. In order to establish a model EEO program and avoid potential liability for harassment clams, federal agencies should establish an anti-harassment policy and complaint procedure which is in compliance with EEOC's Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, Notice 915.002, June 18, 1999. For agencies with numerous sub- components, we recommend that the agency head ensure that each sub-component has an anti- harassment policy which complies with the Enforcement Guidance and is consistently enforced. For examples of model anti-harassment policies, we recommend that agencies review the policies developed by the Social Security Administration and the Department of Labor. See App. 5.

At a minimum, an agency's anti-harassment policy should contain the following elements:

a. Clearly explain the prohibited conduct. In particular, the policy should cover all forms of harassment, including race, color, gender (both sexual and non-sexual), age, national origin, disability, and religion;

b. Write the policy in a way that will be understood by all employees and implement it in a manner which ensures its effective dissemination to all employees. The policy needs to be posted in conspicuous locations throughout the facility, including the agency's website, and incorporated into employee orientation materials/handbooks;

c. State that complainants, witnesses, and others who provide information concerning such claims will be protected from retaliation;

d. Assure the confidentiality of individuals bringing claims of harassment to the extent possible;

e. Describe the complaint process, particularly the agency officials who can receive harassment claims. It is advisable to designate at least one official outside the employee's chain of command to receive claims of harassment because a conflict of interest could occur if the alleged harasser is within the employee's chain of command;

f. Ensure that the investigation process is prompt, thorough, and impartial. In this regard, agencies should develop complaint procedures that are separate from the EEO process and address all claims of harassment irrespective of whether the alleged victim files an EEO complaint in the same matter;

g. Assure immediate and appropriate corrective action, including discipline or removal of employees and managers. Agencies, however, should not take action involving the alleged victim without their consent (i.e., transferring the victim to another office); rather, it is preferable to implement measures designed to achieve the same result without burdening the alleged victim; and

h. Provide periodic training to all managers and supervisors regarding the terms of the anti- harassment policy and procedures, and their role in the complaint process. Additional training for employees would also be useful.

2. It is essential for the agency head to emphasize to managers and supervisors that harassment will not be tolerated in the agency. If the agency head makes management leadership an issue by holding management officials accountable for harassing conduct that occurs in their departments, the officials will have more incentive to discover and eliminate such conduct.

3. Agencies should take reasonable steps to prevent and correct harassment. For those agencies that currently limit the scope of their policy to only matters that are severe or pervasive, they should develop a more comprehensive anti-harassment policy which could prevent harassment before employees have been subject to actionable harm.

4. To aggressively resolve harassment claims as early as possible, we suggest that the agency head strongly encourage the use of alternative dispute resolution (ADR), when appropriate.

5. Agencies should train employees about the anti-harassment policy and complaint procedures. Since this training should also educate employees about the types of conduct that constitute harassment under the anti-discrimination laws, the training may also address the issue of over- reporting harassment claims. The training may also allow agencies to show that an employee's failure to utilize the harassment process was not the result of the agency failing to tell the employee about the process.

6. Agencies should ensure that non-sexual harassment is not used as a "catch all" category for complaints that should appropriately be categorized as "other" issues in the EEOC Form 462.

To assist with oversight of the anti-harassment program, agencies should utilize a centralized system for tracking and monitoring inquiries or allegations of harassment. In this regard, we advise instituting specific guidelines for monitoring allegations and inquiries, which will allow for the early identification and effective resolution of conflict situations that could otherwise escalate if left unchecked. Agencies have suggested conducting trend analysis, root cause analysis, and climate assessment to locate "hot spots" of harassment and to obtain feedback on the climate in the workplace.

G. LIABILITY FOR CLAIMS OF HARASSMENT BY THIRD PARTIES.

Faragher and Ellerth discussed the distinction between sexual harassment claims involving the conduct of supervisors (for which liability is virtually automatic) and the conduct of co-workers or other non-supervisors (for which liability is dependent upon whether the employer took steps to prevent the harassment, how the employer acted once it became aware of the conduct, and whether the employee took advantage of opportunities to avoid the harassment). Employer liability for harassment by third parties (such as vendors, customers, visitors to the workplace, and the like) is governed by the latter standard, which is sometimes referred to as the "negligence standard."

A good example of such cases is found in Dunn v. Wash. County Hosp., 429 F.3d 689 (7th Cir. 2005), which involved claims by a hospital employee that she was sexually harassed by a physician. The employee complained to her employer, the hospital, but the hospital did nothing and the harassment continued. The offending physician was not an employee of the hospital, but was an independent contractor, so the question arose whether the hospital could be held liable for discriminating against Dunn when the harasser was a third party. The District Court held that the hospital could not be liable and dismissed the case. The Seventh Circuit reversed, reasoning that "the employer's responsibility is to provide its employees with nondiscriminatory working conditions. The genesis of inequality matters not; what does matter is how the employer handles the problem." It did not matter that only the doctor, not the hospital, acted with discriminatory intent, even though the doctor was not the hospital's agent. The employer did not engage in disparate treatment, and yet it discriminated in violation of Title VII.

The EEOC's sexual harassment guidelines, found at 29 C.F.R. § 1604.11(e) (2008), provide:

An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider 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.

In another recent case, EEOC v. Cromer Food Services, Inc., 2011 U.S. App. LEXIS 4279 (4th Cir. 2011), a male employee who worked stocking food in vending machines claimed he suffered "a daily barrage of lewd comments and gestures" by employees of his employer's largest client, a hospital. A co-worker left a note in the hospital canteen calling the employee "gay," and thereafter he began to be daily subjected to crude behavior and unwanted sexual comments by two hospital employees "in nearly every encounter they had" with him. The employee could not leave his job stocking the vending machines without abandoning his duties. The employee complained to his supervisor and to the hospital. His supervisor made light of the situation and told the employee that the other men were "only joking." When the employee complained to one of the sons of the employer's Board Chairman, he was cautioned that the employer could "lose everything" if it lost the client, and he was told that the employer "was not responsible for" the hospital employees. When the employee filed a charge with the EEOC, his supervisor complained to the employee that he "got this stupid letter from the EEOC," and the employee was transferred to another job, with a loss in pay. The EEOC filed suit on behalf of the employee, and the District Court granted summary judgment to the employer. The Fourth Circuit Court of Appeals reversed, noting that it had not previously considered an employer's sexual harassment liability for the acts of non-employees. The Court adopted the "negligence standard," noting that the employer would be "liable if it knew or should have known of the harassment and failed to take appropriate actions to halt it."

In its opinion in Cromer Food Service, the Fourth Circuit further described a survey of other decisions which considered liability for acts of third parties, noting:
Other Circuits to address the issue have adopted a negligence standard, finding that an employer can be liable if it took no steps to protect its employees and if it had actual or constructive knowledge of the situation. See Dunn v. Washington County, 429 F.3d 689, 691 (7th Cir. 2005) (employers, which have an "arsenal" of tools at their disposal, can be liable for the acts of independent contractors if they fail to take corrective action); Galdamez v. Potter, 415 F. 3d 1015, 1022 (9th Cir. 2005) (employer can be liable for third parties if it ratifies their actions by failing to act); Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 n.2 (11th Cir. 2003)(employer can be liable for acts of its customers if it knew or should have known of actions); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001)(adopting a negligence standard in this context). EEOC regulations are also to the point, providing that an employer "may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action." 29 C.F.R. § 1604.11(e)(internal citations and quotations omitted). The analysis is very similar to the standard used by this Circuit in the context of harassment of co-workers. See Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th Cir. 2003)("The employer may be liable in negligence if it knew or should have known about the harassment and failed to take effective action to stop it.").

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