LATEST DEVELOPMENTS IN GENDER DISCRIMINATION AND
HARRASSMENT
March 21-23, 2007
Steven S. Locke
Brandeis University
Waltham, MA1
I.
Faragher/Ellerth Continued…
The year 2006 was marked by the continued evolution of the Faragher/Ellerth
defense. By now, all employment law practitioners are all too familiar with the
Faragher/Ellerth standard enunciated by the U.S. Supreme Court in its landmark decisions of
1998.2 While the standard has not changed, lower court interpretations continue to evolve and
their recent decisions emphasize the need for employers to remain vigilant in their internal
practices.
An employer’s ability to establish an affirmative defense based on the Faragher and
Ellerth decisions is often times the difference between winning and losing (or at least paying
out a lot of money) in a case. The defense is based upon the construct that an employer that
creates an effective internal system to address complaints should not be liable for the rogue
conduct of its employees.
The standard as articulated by the Supreme Court in Ellerth is as follows: “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. Rule. Civ. Proc. 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 preventive or corrective opportunities provided by the employer or to avoid harm
otherwise.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 757 (1998).
A.
The Ninth Circuit’s New and Improved Faragher/Ellerth Interpretation or
“How to do nothing and get away with it”
In a case right out of Hollywood, the Ninth Circuit dismissed a “reverse” sexual
harassment claim by a male advertising account executive for a television station managed by
1
With thanks to Meredith Dishaw for her research assistance.
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775
(1998).
2
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CBS. Hardage v. CBS Broadcasting, 436 F.3d 1050 (9th Cir. 2006). Hugh Hardage alleged
that over a period of several months his female boss made numerous sexual advances towards
him, both verbal and physical. He finally complained, but when approached by the
company’s designated sexual harassment investigator, Paul Falcone, Hardage provided only a
vague, generic account of his boss’ conduct3 and specifically requested that the individual not
investigate his complaint, insisting on handling the situation by himself. Approximately two
weeks after their meeting, the investigator called Hardage to follow up, and Hardage informed
him that nothing new had happened and that he still did not want the investigator to intervene.
Hardage subsequently ran into performance difficulties and resigned. He then sued for sexual
harassment. The Ninth Circuit upheld the lower court’s summary judgment decision against
Hardage based on the Faragher/Ellerth defense.
With respect to the first prong of the defense, the court reasoned, “In order to assert
the Ellerth/Faragher defense successfully, CBS must have ‘exercise[d] reasonable care to
prevent and correct promptly any sexually harassing behavior.’ Ellerth, 524 U.S. at 765;
Faragher, 524 U.S. at 807. In Kohler, 244 F.3d at 1180-81, we construed this standard to
require both preventive and remedial measures. As for the former, we held that an employer’s
adoption of an anti-harassment ‘policy and its efforts to disseminate the policy to its
employees establish that [the employer] exercised reasonable care to prevent sexual
harassment in the workplace.’ Id. at 1180; see also Ellerth, 524 U.S. at 765. In this case, it is
undisputed that CBS has an anti-harassment policy, with which Hardage had familiarity. As a
supervisor, he was responsible for reporting sexual harassment to the human resources
department, and he understood that sexual harassment was prohibited. Thus, CBS fulfilled its
duty to take preventive measures as a matter of law by adopting and promoting awareness of
its anti-harassment policy.”
The court further ruled that CBS took appropriate steps to correct Hardage’s particular
situation promptly. The court held that Hardage’s “specific request not to investigate his
admittedly minimal and vague complaint” relieved CBS of any duty it may have had to
investigate Hardage’s complaint. Thus, the court concluded that CBS had acted reasonably in
its response to Hardage’s complaint reasoning, “There may be circumstances where an
employer’s ‘remedial obligation kicks in,’ regardless of the employee’s stated wishes. In other
words, the mere fact that the employee tells the employer not to take any remedial action may
not always relieve that employer of the obligation to do so. See, e.g., Torres v. Pisano, 116
F.3d 625, 639 (2d Cir. 1997). Here, however, it is uncontested that Hardage did not want
Falcone to take further action, and that Hardage’s wishes were not insincere or uninformed.
Moreover, Hardage did not disclose to Falcone the details of the harassment, so Falcone had
no way to know of its severity.”
As to the second prong of the defense, the court found that by waiting six months to
report the harassment and “[b]y specifically requesting the company not make use of its
“Instead, he gave Falcone ‘[j]ust the broad statement . . . that [Sparks] had made . . . unwanted sexual advances
that were denied,” that he was uncomfortable with the situation, and that Sparks had lost her temper and was
‘jeopardizing . . . the success of the team.’”
3
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remedial and preventative procedures, Hardage unreasonably failed to make use of CBS’s
anti-harassment policies and procedures.”
The dissent chastised the majority for “depart[ing] from well-settled case law
requiring an employer to conduct an investigation and take prompt corrective action once it is
on notice of alleged harassment” citing caselaw and the EEOC Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors. “Contrary to our case
law, the majority holds that an employer’s response to a harassment complaint may be
deemed reasonable as a matter of law even though the employer conducted no investigation
and took no action to address the harassing behavior.”
Practice Note: For an employer, this is NOT a recommended practice to follow. Both the
EEOC and many courts have maintained that employers may not discharge their duty to
investigate simply upon the request of the complainant. In fact, common sense tells us that
the reason that employers are charged with conducting an “investigation” is because they may
not get the complete story from the complainant for various reasons, one of which can be fear
of retribution as was demonstrated in this case. The amount of specificity aside, a
complainant’s use of the phrase “unwanted sexual advances” should be enough for any
employer to jump to attention and start an investigation.
B.
Waiting Four Months to Report Harassment Deemed Unreasonable or
“She who hesitates is lost”
In Jackson v. City of Racine, 05-4070 (7th Cir. January 25, 2007), the Seventh Circuit
held that the plaintiffs’ four month delay in reporting sexually harassing conduct constituted
“unreasonable delay” under Faragher/Ellerth and resulted in summary judgment for an
employer that responded quickly and appropriately once put on notice.
II.
Burlington Northern Interpreted
Courts have begun to interpret the United States Supreme Court’s articulation of the
Title VII retaliation standard in Burlington Northern & Santa Fe Railway Company v. White,
126 S. Ct. 2405 (2006). In Burlington Northern, the Court held that the retaliation provision
of Title VII covers any action that is “materially adverse to a reasonable employee or job
applicant.” “Materially adverse” means any action that would be “harmful to the point that
[it] could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Retaliating conduct does not have to occur in the workplace or be related to
employment to be actionable.
Yet, while the standard may have changed for determining an adverse action, the
recommended practice for avoiding retaliation claims when responding to sexual harassment
complaints remains the same. Two cases in particular highlight the importance of creating,
publicizing and following an internal investigation process.
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A.
Effective Management Practices Defeat Discrimination Claim or “What’s
a little ‘intersexual flirtation’ between co-workers?”
In Argo v. Blue Cross and Blue Shield of Kansas, 452 F.3d 1193 (10th Cir. 2006), the
Tenth Circuit affirmed the District Court’s dismissal of plaintiff’s “reverse” sex
discrimination and retaliation claims. Griff Argo was hired by Blue Cross Blue Shield in
January, 1996, as an Individual Enrollment Specialist. Argo met Brenda Olivia, an employee
in a different department. While Argo and Olivia had met previously, Argo could not recall
her name. Olivia teased, “Oh, so you’re too good to remember my name?” While Argo
maintains that this was not a pick-up line, he stated that her “tone of voice…impl[ied] a form
of attraction, and I have to say sexual harassment.” Olivia subsequently became Argo’s
supervisor and Argo claimed that he was subject to a pattern of sexual harassment until he
was terminated for poor performance.
To support his claim, Argo pointed to five incidents over a five year period that he
alleged amounted to sexual harassment: 1) Olivia’s initial greeting; 2) her joking comment to
Argo of, “Whoa, nice legs” when she saw him in shorts; 3) another occasion when Olivia
smiled and winked at Argo after offering constructive criticism; 4) a birthday card Olivia gave
to Argo with a woman in black lingerie on the cover; and 5) her placement of the tip of her
shoe slightly over the tip of his shoe when she was reprimanding him.
Three days after receiving a final warning for poor performance, Argo filed an internal
complaint claiming sexual harassment by Olivia. The company commenced an internal
investigation, but was unable to substantiate any of Argo’s claims. Olivia received counseling
from her manager on appropriate behavior, but the company took no other action. Less than a
month later, Argo was fired.
On his reverse sex discrimination claim, the appeals court found Olivia’s actions
“incredibly mild,” representing “precisely the kind of ‘ordinary socializing in the workplace’
and ‘intersexual flirtation’ about which Title VII is unconcerned.” Moreover, Argo could not
establish any connection between Olivia’s flirtations and his termination.
The court also found Argo’s retaliation claim lacking despite his termination’s
temporal proximity to his internal complaint. While Olivia may have had some shortcomings
on the interpersonal relationship side, she was a Cracker Jack manager when it came to giving
employee feedback and documenting performance problems. Thus, Blue Cross was able to
offer reams of documents detailing Olivia’s concerns with Argo’s performance and attitude
dating back almost one year. In response to Argo’s protestations that he really wasn’t so bad,
the court demurred, reasoning “Title VII charges neither this Court nor the jury to act as a
‘super personnel department’ that second guesses employer business judgments.” Case
dismissed.
Practice Note: This case demonstrates many “best practices” on the management side (other
than the supervisor’s unique approach to employee relations). Olivia provided Argo with
feedback regularly and documented her concerns. When Argo filed what some might
consider to be a spurious internal complaint, the company, nevertheless, conducted an
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investigation. Even when it determined that the complaint lacked merit, it still elected to take
action with respect to Olivia in the form of providing her with management counseling. All
of these actions put Blue Cross in a strong position to defend the harassment claim as well as
the retaliation claim.
B.
The Demise of the Prison Defense or “Actually, lifting a woman off the
floor by the neck is not horseplay”
In Randolph v. Ohio Dept. of Youth Services, 453 F.3d 724 (6th Cir. 2006), the Sixth
Circuit overturned a lower court’s dismissal of Donna Randolph’s sexual harassment and
retaliation complaint against the prison where she worked. Donna Randolph was employed as
a food service worker with the state of Ohio in the Circleville Youth Center (CYC), an allmale, maximum security youth facility, between April 1995 through December 1996. A
“cadre” program was initiated in 1995 to provide job training to inmates that were nearing
their release dates; a few cadre members were assigned to the kitchen. The cadre members
frequently listened to music that was derogatory towards women and used offensive body
language. Also, the cadre members used offensive and derogatory language to address the
female workers and to describe their bodies. The female employees complained to their
supervisors; however, CYC did not adequately address their complaints, which intensified the
cadre members’ behavior and the verbal harassment. Randolph was subsequently sexually
assaulted twice by an inmate. After Randolph said she would report the incident, the inmate
attached her in the kitchen, throwing her against an appliance and lifting her off the floor by
her neck. One of her supervisors observed the incident and described it as “horseplaying.”
After Randolph reported the incident, the inmate was removed from kitchen duty, but other
inmates subsequently threatened Randolph.
Randolph’s report of the incident led to two separate investigations into her conduct,
in particular whether she had violated state law by engaging in consensual sex with an inmate.
As a result, CYC initiated disciplinary proceedings against Randolph, placed her on
administrative leave and eventually fired her. She filed a grievance and was subsequently
reinstated with 70% back pay.
With respect to Randolph’s sexual harassment complaint, the Sixth Circuit overturned
the District Court’s imposition of the “prison exception,” ruling that “[t]he fact that Randolph
was employed in a prison is not sufficient to overcome the allegations of hostility presented in
this case. As the district court noted, ‘“[p]risoners, by definition, have breached prevailing
societal norms in fundamentally corrosive ways,”’ and thus ‘“[b]y choosing to work in a
prison, corrections personnel have acknowledged and accepted the probability that they will
face inappropriate and socially deviant behavior.”’ Slayton v. Ohio Dep’t of Youth Servs., 206
F.3d 669, 677 (6th Cir. 2000). The Slayton principle that corrections personnel have accepted
the probability of deviant behavior is not without limit, however. Randolph’s allegations are
so serious that they satisfy the hostile work environment prong despite the mitigating
consideration of the prison work environment.”
Further, the court found that CYC’s response to Randolph’s complaint was
inadequate. CYC’s removal of the perpetrator from the kitchen did not discharge its duty to
“remedy or prevent” harassing behavior. In fact, Randolph continued to suffer verbal
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harassment at the hands of other inmates, which the court found to be directly related to the
harassment perpetrated by her attacker. Thus, CYC’s failure to monitor the situation and
address the conduct of other inmates rendered its response inadequate.
On Randolph’s retaliation claim, the district court held that because she was reinstated
with 70% back pay, she could not establish that she had been subject to an adverse action.
The Sixth Circuit reversed, ruling that, “[i]n this case, as in Burlington Northern, the
termination and concomitant loss of income constitutes a materially adverse action under Title
VII, notwithstanding Randolph’s later reinstatement with back pay.”
Practice Note: Prior to reading this case, it had been my impression that the “rough and
tumble workplace” defense had died out several years ago. This confirms what had always
been my belief that if an employer has to invoke the defense it has some serious deficiencies
in its in-house management. Best practices for any employer means zero tolerance for any
inappropriate workplace conduct (even with respect to third parties). It is eminently easier
(and less costly) to defend a zero tolerance policy to employees than a sexual harassment case
in court.
III.
Hostile or Simply Uncivil?
An issue that continued to occupy courts in 2006 was the long-standing question of
when does conduct become severe or pervasive, and thus create a hostile environment and
actionable claim. Two cases explored this criterion with interesting results.
A.
Failure to Witness Sexual Conduct Dooms Hostile Environment Claim or
“If you’re going to watch porn please keep your office door shut.”
In Patane v. Clark & Fordham University, 435 F. Supp. 2d 306 (S.D.N.Y. 2006),
Elanora Patane sued John Clark and Fordham University for sex discrimination (sexual
harassment) and retaliation under Title VII. Patane was the Executive Secretary in the
Classics Department at Fordham. Clark was the chair of the Department in 1998, when
plaintiff was hired. Patane alleged that Clark brought a TV-VCR into his office and watched
"hard core" pornographic materials for one to two hours each day. During the 1999-2000
academic year, Patane “observed Clark approximately every twenty minutes rush past her —
with his face flushed — on the way to the men's room for the apparent purpose of
masturbating.” In addition, as department secretary, plaintiff received and handled Clark's
mail, which often contained sadomasochist videotapes. Patane also alleged that she found
"hard core" websites on her computer, which she attributed to Clark. Finally, Patane alleged
that Clark engaged in inappropriate behavior with his daughter in his office.
Patane filed an internal harassment complaint, but was basically ignored. She alleged
that in response, Clark removed many of her secretarial functions and refused to communicate
with her except through e-mail. Plaintiff claimed that she overheard another department
professor secretly advising Clark, "[D]on't give her any more work, this will make her leave."
Later, the department chair monitored her telephone calls and whereabouts, encouraged her to
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falsify time sheets and issued a performance review that Patane considered negative. The
performance review gave Patane the highest marks in all categories, but included additional
comments noting that her attitude could be less hostile to certain employees. The review
praised Patane’s work ethic, efficiency and organization.
The court dismissed Patane’s sexual harassment complaint opining that Clark’s
behavior, though “questionable”, “without more, does not rise to the level of a hostile work
environment. We are reminded that Title VII is not ‘a general civility code.’ While this Court
is sympathetic to plaintiff's position, these allegations are insufficient to raise a hostile work
environment claim because plaintiff never saw the videos, witnessed Clark watch the videos,
or witnessed Clark performing sexual acts.”
The court also found Patane’s retaliation claim lacking, reasoning, “Plaintiff alleges
that negative elements of her performance review constitute a retaliatory action…. However,
this action was not adverse, nor is there any evidence that it disadvantaged plaintiff.
Richardson v. New York State Dept. of Corr., 180 F.3d 426, 443-44 (2nd Cir. 1999)
(rejecting a claim of adverse employment action based upon a performance review of
"average" rather than "excellent"). Nor does the fact that [the department chair] monitors
plaintiff's phone calls and whereabouts more carefully, rise to the level of retaliatory action.
See Figueroa v. City of New York, 198 F. Supp. 2d 555, 568 (S.D.N.Y. 2002) (heightened
supervision is not adverse employment action). Plaintiff's Title VII allegations of diminished
secretarial functions fail to establish that the work reductions were sufficiently adverse, as
they do not specify the severity or degree.”
B.
Single Act Insufficient to Establish a Hostile Environment or “Once is just
not enough.”
In Pomales v. Celulares Telefonica, Inc., 456 F.3d 79, 83-84 (1st Cir. 2006),
Magdalena Pomales worked as a sales consultant for Celulares Telefónica, Inc. (CTI), a
Puerto Rico retailer of cellular telephone equipment and services. She was fired by CTI for
poor performance and subsequently brought a sexual harassment claim. The First Circuit
upheld the District Court’s granting of summary judgment. According to Pomales, she
invited a supervisor, Peter Rodríguez, to come on a sales visit with her, and he responded by
grabbing his crotch and stating that "it would be great to come with you."
The court concluded that Pomales’ co-worker’s conduct was not severe or pervasive
enough to constitute a hostile work environment. The court reasoned, “[t]he alleged harassing
conduct, while certainly crude, comprised only a single incident….There was no proof that
Peter Rodríguez touched or physically threatened Pomales. While we do not preclude the
possibility of a single-incident hostile work environment claim based on exclusively verbal
conduct, successful single-incident claims typically have involved unwanted physical
contact.”
The court cited several other decisions in which the court determined that conduct
was insufficient to establish a hostile work environment claim. See, e.g., Chamberlin, 915
F.2d at 783 (concluding that it was "highly doubtful" that five sexual advances by a
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supervisor “could be considered sufficiently severe or pervasive to support a sexual
discrimination claim of the hostile environment variety”); Morgan v. Mass. Gen. Hosp., 901
F.2d 186, 192-93 (1st Cir. 1990) (holding that conduct was not sufficiently severe or
pervasive where, over two-week period, a co-worker stood behind the plaintiff to create
physical contact, surreptitiously looked at the plaintiff's genitals in the restroom, and engaged
in unwanted touching); Burnett v. Tyco Corp., 203 F.3d 980, 984-85 (6th Cir. 2000) (holding
that evidence of a single battery and two offensive remarks over six months did not establish a
hostile environment).
IV.
Distinguishing Between Sex Stereotyping and Sexual Orientation Discrimination
As this last case demonstrates, courts are still grappling with Title VII’s mandate to
protect individuals from discrimination based on sex, while refusing to accord rights based on
sexual orientation. The landmark U.S. Supreme Court decision in Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989), paved the way for sex stereotyping claims, but courts have
since been flummoxed in their attempts to segregate sex-based from sexual-orientation-based
harassment, given that both types of harassment are often voiced in terms of sexual preference
and motive is rarely revealed. The following case is no exception, but does appear to reveal a
predilection, at least in the Sixth Circuit, to limit sex stereotyping claims.
A.
Distinguishing Discrimination Based on Sex Stereotyping from
Discrimination Based on Sexual Orientation or “Sorry, you’re not acting
gay enough for Title VII”
In Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006), Christopher
Vickers was employed as a private police officer by Fairfield Medical Center in Lancaster,
Ohio. Vickers befriended a male homosexual doctor at FMC and assisted him in an
investigation regarding sexual misconduct that had allegedly occurred against the doctor.
Once his co-workers found out about the friendship, they “began making sexually based slurs
and discriminating remarks about Vickers, alleging that Vickers was gay…and questioning
his masculinity.”4 The allegations of harassment included impressing the word “FAG” on
Vickers’ report forms, frequent derogatory comments regarding Vickers’ sexual preferences
and activities, frequently calling Vickers a “fag,” “gay,” and “other derogatory names,”
playing tape-recorded conversations in the office during which Vickers was ridiculed for
being homosexual, subjecting Vickers to vulgar gestures, placing irritants and chemicals in
Vickers’ food, using the nickname “Kiss” for Vickers, and making lewd remarks suggesting
that Vickers provide them with sexual favors.
Vickers also alleged that on several occasions, he was physically harassed by his coworkers. On one occasion, Vickers and a co-worker were conducting handcuff training.
Another co-worker handcuffed Vickers and then simulated sex with Vickers while a third coworker photographed this incident. Vickers alleged that the picture was subsequently hung in
a window at FMC, where FMC staff and visitors could see it. On other occasions, Vickers’
co-workers repeatedly touched his crotch with a tape measure, grabbed Vickers’ chest while
4
The court noted that Vickers never disclosed his sexual orientation to co-workers.
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making derogatory comments, tried to shove a sanitary napkin in Vickers’ face, and simulated
sex with a stuffed animal and then tried to push the stuffed animal into Vickers’ crotch.
Vickers filed a claim under Title VII for sex discrimination based on sex stereotyping
in the Price Waterhouse vein. He claimed that he was discriminated against because his
harassers objected to “those aspects of homosexual behavior in which a male participant
assumes what [defendants] perceive as a traditionally female–or less masculine–role.” The
court’s interpretation was that “Vickers contends that in the eyes of his co-workers, his sexual
practices, whether real or perceived, did not conform to the traditionally masculine role.
Rather, in his supposed sexual practices, he behaved more like a woman.”
The court concluded that “the theory of sex stereotyping under Price Waterhouse is
not broad enough to encompass Vickers’ case.” The court reasoned that “the Supreme Court
in Price Waterhouse focused principally on characteristics that were readily demonstrable in
the workplace, such as the plaintiff’s manner of walking and talking at work, as well as her
work attire and her hairstyle. Later cases applying Price Waterhouse have interpreted it as
applying where gender non-conformance is demonstrable through the plaintiff’s appearance
or behavior. By contrast, the gender nonconforming behavior which Vickers claims supports
his theory of sex stereotyping is not behavior observed at work or affecting his job
performance. Vickers has made no argument that his appearance or mannerisms on the job
were perceived as gender non-conforming in some way and provided the basis for the
harassment he experienced. Rather, the harassment of which Vickers complains is more
properly viewed as harassment based on Vickers’ perceived homosexuality, rather than based
on gender non-conformity….[W]e do not suggest that Vickers’ claim fails merely because he
has been classified by his co-workers and supervisor, rightly or wrongly, as a homosexual.
Rather, his claim fails because Vickers has failed to allege that he did not conform to
traditional gender stereotypes in any observable way at work.”
The court rejected Vickers’ argument that his co-workers’ perception of him as gay
implicated Title VII because of the negative social stigma attached to homosexuality. The
court reasoned, “[u]ltimately, recognition of Vickers’ claim would have the effect of de facto
amending Title VII to encompass sexual orientation as a prohibited basis for discrimination.
In all likelihood, any discrimination based on sexual orientation would be actionable under a
sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail
to conform to traditional gender norms in their sexual practices.”
Practice Note: This is a bizarrely reasoned opinion in which the court engages in legal
gymnastics to find for the defendant. Essentially, the court rules that Vickers did not act gay
enough at work to support his sex stereotyping claim. The court seemed to miss the point that
Vickers’ friendship with an openly gay male was, in the eyes of his co-workers, sufficiently
uncharacteristic of his gender to merit harassment. The legal principle that seems to arise
from this case is that under Title VII it is permissible to harass a co-worker using gay
stereotypes as a weapon, unless the co-worker actually conforms to some of those stereotypes,
in which case it is unlawful.
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I would characterize the outcome for the defendant as winning the battle, but losing the war.
As an employer, you never want to have to resort to this type of hair-splitting to defend a
case. First, it does not often result in victory. Second, it airs your organization’s dirty
laundry. Third, and most importantly, it does not give prospective applicants a warm and
fuzzy feeling about joining your organization.
V.
How to Create the Best Environment for Asserting the Faragher/Ellerth Defense
A.
Creating an Effective Harassment Policy
As the Ninth Circuit pointed out in Hardage, employers have a responsibility to
prevent sexual harassment in their workplaces. Employers need to create an informative,
comprehensive sexual harassment policy that clearly explains employee rights and how to
invoke them. The policy must include a thorough explanation of conduct constituting sexual
harassment and lay out a clear, accessible complaint procedure.
Employers should be careful to avoid boilerplate policies and be sure to tailor their
policy to their specific workplace. Employers should also try to anticipate issues that may
arise as a result of unique aspects of the business they conduct. Finally, employers should
consider revising their policies to make them consistent with the retaliation principles
identified in the U.S. Supreme Court’s decision in Burlington Northern.
The EEOC sets out six elements that, at a minimum, any sexual harassment policy
should contain:






A clear explanation of prohibited conduct;
Assurance that employees who make complaints of harassment or provide information
related to such complaints will be protected against retaliation;
A clearly described complaint process that provides accessible avenues of complaint;
Assurance that the employer will protect the confidentiality of harassment complaints
to the extent possible;
A complaint process that provides a prompt, thorough, and impartial investigation; and
Assurance that the employer will take immediate and appropriate corrective action
when it determines that harassment has occurred.5
B.
Ensuring that Your Policy is Read
Even the best harassment policy will fail if an employer does not ensure that it is
received and read by its employees. Such failure will also doom an employer’s ability to
prevail using the Faragher/Ellerth defense. An employer should employ several protocols to
ensure that its policy is reviewed by employees. All new employees should receive the policy
as part of their “welcome packet.” They should be required to execute a written
From the EEOC’s Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors available at http://www.eeoc.gov/policy/docs/harassment.html.
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acknowledgement of receipt. In addition, new employee orientation should include a segment
on harassment and a review of the policy. Employers should keep attendance records and
may want to have employees sign an acknowledgment at the end of the session indicating that
they received training on the harassment policy and understand it. Next, employers should
periodically distribute the policy to all employees (once a year is often recommended – check
state law). Employers should create a protocol by which employees acknowledge receipt of
the policy and agree to have read and understood its contents. Finally, the policy should be
posted in a prominent workplace location.
C.
“Correcting” Harassing Behavior
The first order of business in ensuring that your organization can “correct” harassing
behavior as required by Faragher/Ellerth is to make sure that your harassment complaint
process does not scare off employees, but reassures them that their complaints will be taken
seriously and they will not suffer retribution. One of the key components to this is providing
alternative avenues for making a complaint. Employers should have a designated sexual
harassment officer, but should also encourage employees to feel free to report harassment to
other members of the management team if preferable. Managers and supervisors must be
trained to receive complaints and report them to the harassment officer in a timely manner.
All employees should also be told that they have a responsibility to report any harassment that
they experience, witness or hear about.
Another key to the Faragher/Ellerth defense is prompt investigation and resolution of
internal complaints. In cases in which the employer prevails, courts often recount step-bystep the investigative process followed by the employer and the result reached. Obviously the
term “correct” can be interpreted in many ways in the context of remedial action, but courts
generally look to see whether the complained-of conduct ceased after the employer
intervened. Courts often also examine whether the employer’s response sent the appropriate
message to the workforce that it takes harassment matters seriously. Thus, it is important that
employers fashion a remedy that is likely to end the harassment, and incorporate internal
checks going forward to make sure that the harassment has, in fact, abated and that no one is
experiencing retaliation.
VI.
Sexual Harassment Investigation “Do’s and Don’ts”
The following is a short checklist of important considerations when conducting an internal
harassment investigation:
1) DO investigate harassment complaints immediately
2) DON’T turn a blind eye to potential harassment, even if the complainant asks you to.
If you receive a report (or are otherwise put on notice) of potentially harassing
conduct, you have a legal obligation to investigate it, even if the complainant asks you
not to.
3) DO immediately consider whether interim measures are needed to prevent interaction
between the complainant and the accused.
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4) DON’T impose interim measures that could be viewed as punishing or stigmatizing
the complainant. Do your best to do the same for the accused.
5) DO your best to ensure the confidentiality of the process and emphasize to all
involved the need for confidentiality. However, DON’T promise the complainant or
anyone else involved in the process that the complaint or their involvement will never
be revealed.
6) DO assume that any investigative documents will be revealed in the event of
litigation.
7) DO inform all individuals who are interviewed as part of an investigation of their
rights against retaliation and the importance of their reporting any retaliatory conduct.
8) DON’T make an official determination that sexual harassment occurred. Instead,
conclude that the sexual harassment policy was violated.
9) DON’T make discipline contingent upon the occurrence of sexual harassment.
10) DON’T automatically do nothing if you determine that the sexual harassment policy
has not been violated.
11) DO write your policy broadly enough to permit the employer to discipline for
inappropriate conduct short of sexual harassment (even conduct determined not to be
sexual at all, if inappropriate).
12) DO consider training or a mini-refresher for the impacted work unit regardless of the
investigation’s outcome.
13) DO follow up periodically with the complainant after the investigation process is over
to ensure that he/she feels that the problem has been resolved.
14) DO investigate sexual harassment complaints even you believe they are meritless.
15) DO make clear to supervisors their reporting obligations.
16) DO make clear to employees their reporting avenues.
17) DO provide regular training.
VII.
Additional Resource
During my tenure as General Counsel of the Massachusetts Commission Against
Discrimination, the agency published guidelines to assist employers and employees in
understanding sexual harassment law. I have reproduced the sections on internal investigation
and retaliation for your reference. The complete Guidelines may be found at
www.mass.gov/mcad/shtoc.html.
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MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION
SEXUAL HARASSMENT IN THE WORKPLACE GUIDELINES
I. INVESTIGATING SEXUAL HARASSMENT COMPLAINTS
1. Preliminary Issues
In general, the employer should always investigate a complaint of sexual harassment
as soon as practicable, even if an employee asks that it not investigate his or her claim.
Employers should investigate any claim involving physical violence immediately. The
nature and duration of the investigation will depend on the circumstances of the
complaint, including the type, severity and frequency of the alleged harassment.
2. Conducting the Investigation
Employers should investigate allegations of sexual harassment in a fair and
expeditious manner, in a way that maintains confidentiality to the extent practicable.
Employers should inform complainants that they have a legal duty to investigate
allegations of sexual harassment, and that, while the matter will be kept as confidential
as possible, it may not be possible to withhold the complainant's identity from the
alleged harasser. The employer's investigation should generally include interviews of
the complainant, the alleged harasser, witnesses, individuals whom any of the
foregoing identify as having knowledge of potential relevance to the allegations, and
anyone else whom the employer believes may have such knowledge. These interviews
should be conducted in a way that protects the privacy of the individuals involved to
the extent practicable under the circumstances. They should also be conducted in
person where possible.
The investigator should inform each interviewee, as well as any other individual
apprised of the investigation, that the investigation is confidential and should not be
discussed with co-workers. The investigator should further inform them that the
employer will not tolerate any retaliation against the complainant or anyone else who
cooperates with the investigation. The investigator should also prohibit interference
with or obstruction of any investigation by the MCAD or EEOC into the allegations.
The employer's investigation should also include a review of any documents, journals,
recordings, photographs, voice mails, e-mails, telephone records, or other items that
may be relevant to the allegations of harassment.
3. The Investigative File
The investigator should take notes during interviews, or soon thereafter, for the
purpose of maintaining accurate records. The investigator should create and maintain a
confidential investigative file separate from personnel files. The file should include
any materials relevant to the investigation, including but not limited to interview
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notes, relevant employment documents, journals, recordings, photographs, voice
mails, e-mails, telephone records, or other items pertaining to the allegations or the
investigation into them.
4. Special Issues Regarding the Investigation
A. Confidentiality
The employer should ensure that the investigation is kept as confidential as
possible, by communicating information about the investigation only to those
that need to know about it. An employer should not promise absolute
confidentiality to the complainant, the alleged harasser or other witnesses,
because such a promise may obstruct the employer's ability to conduct a fair
and thorough investigation. Generally, the complainant and the alleged
harasser should be kept informed of the status of the investigation during the
process.
B. Interim Measures Pending the Outcome of the Investigation
During the investigation, it may be necessary or advisable for the employer to
take measures to separate the alleged harasser from the complainant. These
measures should be carefully crafted to minimize the chance that the alleged
harasser will either continue to harass the complainant or will retaliate against
her. The employer must also ensure that the measures themselves do not
amount to retaliation against the complainant. The employer should consider a
number of factors in deciding what interim measures to take, including, but not
limited to, the following:







the expressed wishes of the complainant;
the nature and extent of the allegations;
the personal safety of the complainant;
the number of complainants;
whether the alleged harassment is of an ongoing nature;
the behavior of the alleged harasser; and
whether the alleged harasser has an alleged or actual history of
engaging in harassment.
Consideration of these factors may lead the employer to decide that certain
interim measures are necessary and/or advisable. Such measures might include,
but are not limited to:


placing the alleged harasser on administrative leave;
placing the complainant on administrative leave, if the complainant so
requests;
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


transferring the alleged harasser, or the complainant if she requests, to a
different area/department or shift so that there is no further
business/social contact between the complainant and the alleged
harasser;
instructing the alleged harasser to stop the conduct; and
eliminating the alleged harasser's supervisory authority over the
complainant.
During the investigation, the employer has a duty to take the necessary steps to
eliminate from the workplace the harassment about which the complainant has
complained. The fact that it may be burdensome for the employer to take such
action does not diminish this duty. The employer should monitor any interim
measures that it takes throughout the investigation. Monitoring may include
assessing whether the interim measures meet the goals of preventing ongoing
harassment, protecting the safety of the parties and preventing retaliatory
conduct.
5. Reaching a Determination
After the employer's investigation is complete, the investigator should prepare a final
written report documenting his or her findings. Generally, the investigator's report
should detail the steps the investigator took in examining the complainant's allegations
and should explain any conclusions the investigator has made. The employer should
inform the complainant and the alleged harasser of its findings in the matter. If the
employer concludes that sexual harassment has occurred, the employer must take
prompt and appropriate remedial action designed to end the offending conduct and
prevent future harassing conduct. Regardless of the investigator's findings, the
employer should make follow-up inquiries to ensure that the conduct has not resumed
and that neither the complainant nor any witnesses interviewed during the
investigation has suffered any retaliation.
6. Appropriate Remedial Action
When an employer concludes that sexual harassment has occurred, the employer must
take prompt remedial action designed to end the harassment and prevent future
harassment. What constitutes appropriate remedial action depends upon the
circumstances. Appropriate remedial action should reflect the nature and severity of
the harassment, the existence of any prior incidents, and the effectiveness or lack
thereof of any prior remedial steps.
Generally, remedial action consists of the following:
o
o
o
promptly halting any ongoing harassment;
taking prompt, appropriate disciplinary action against the harasser;
taking effective actions to prevent the recurrence of harassment, including
conducting a sexual harassment training where appropriate; and
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o
making the complainant whole by restoring any lost employment benefits or
opportunities.
Whether the employer has taken prompt and appropriate remedial action in a given
case depends upon many factors, including the timeliness of the actions and whether,
given the circumstances, the actions were reasonably likely to stop the conduct and
prevent it from recurring. The inquiry into whether the employer took appropriate
action is focused primarily on whether the remedial action ultimately succeeded,
taking into consideration whether, under the circumstances, the action was reasonably
calculated to succeed. The efficacy of the action is not measured by whether the
complainant feels that justice has been achieved, but whether the behavior that gave
rise to the complaint has ceased and does not threaten to recur.
II. RETALIATION
Neither an employer nor any person may retaliate against an individual who alleges sexual
harassment. Chapter 151B, § 4(4) prohibits any person or employer from taking adverse
action against a person "because he [or she] has opposed any practices forbidden under
[chapter 151B] or because he [or she] has filed a complaint, testified or assisted in any
proceeding under [chapter 151B]." In order to prove retaliation, a complainant must show
that: (A) she engaged in protected activity; (B) her employer knew of this protected activity
and acted adversely against her; and (C) a causal nexus exists between the adverse action and
the protected activity.
1. Protected Activity
Protected activity may include, but is not limited to, such actions as:
o
o
o
o
o
o
o
o
o
speaking to someone at the MCAD, EEOC or other civil rights or law
enforcement agency, or to an attorney about the possibility of filing a claim of
discrimination against the employer;
filing a complaint at the MCAD or EEOC against the employer;
filing a complaint in court;
talking to an MCAD or EEOC investigator about another employee's charge of
discrimination against the employer;
testifying as a witness concerning a claim of harassment against the employer;
complaining to management or filing an internal complaint of harassment;
asking a supervisor or co-worker to stop engaging in harassing conduct;
cooperating with an internal investigation of a sexual harassment complaint; or
meeting with co-workers to discuss how to stop sexual harassment in the
workplace.
In order to prove protected activity, a complainant must demonstrate that she
"reasonably and in good faith believed that the [employer] was engaged in wrongful
discrimination and that [s]he acted reasonably in response to [her] belief." A
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complainant need not prevail on her sexual harassment claim to prove a retaliation
claim.
In addition, the way in which a complainant expresses her opposition to the harassing
conduct must also be reasonable. For instance, physical violence or threats of physical
violence may be considered too extreme a response to be considered reasonable. By
contrast, conduct such as reporting an incident to a sexual harassment officer, filing a
claim at the Commission,6 providing information in an investigation, or testifying at a
proceeding is never considered unreasonable. The Commission's determination as to
the reasonableness of a complainant's oppositional conduct will take into consideration
the egregiousness of the alleged harassment.
2. Adverse Action
An employer takes adverse action under § 4(4) when it materially disadvantages the
complainant with regard to any of the terms or conditions of her employment. The
term "adverse action" can encompass actions such as:
o
o
o
o
o
o
o
termination;
denial of promotion;
demotion in title or duties;
transfer to a less favorable position or location;
involuntary placement on leave;
hostile or abusive workplace treatment; or
decreasing compensation or benefits.
In addition to actions that are materially disadvantageous, retaliation claims can be
based upon allegations of coercion, threats, intimidation, and interference under
chapter 151B, §4(4A), as discussed below.
A complainant must show that her employer knew of her protected activity when it
took adverse action. The MCAD has applied a "knew or should have known" standard
to impute knowledge of a complainant's protected activity to her employer. Certain
protected activity such as filing a complaint with the MCAD puts an employer on
notice by its very nature. However, such notice would only be imputed to the
employer in the presence of proof that the employer had received notice of the MCAD
filing.
3. Causation
A complainant proves causation by showing that her participation in protected activity
was "a determinative factor" in her employer's decision to act adversely against her. A
highly relevant factor in the causation analysis is the proximity in time between the
6
In Pardo v. MGH, 446 Mass. 1 (2006), the Massachusetts Supreme Judicial Court implicitly rejected the
proposition that filing a complaint with the MCAD would be deemed per se reasonable, reasoning “the filing of
a charge can be used as ‘a smoke-screen in challenge to the supervisor’s legitimate criticism.’”
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adverse action and the protected activity. The mere fact, however, that adverse action
occurred after protected activity does not necessarily show causation.
4. Coercion, Intimidation, Threats or Interference
A complainant may also bring a retaliation claim under §4(4A) of chapter 151B if she
is subjected to threats, intimidation, or coercion, or her employment is otherwise
interfered with because she complained of harassment or assisted or encouraged
another who complained of harassment. Unlike a §4(4) claim, a §4(4A) claim does not
require proof of an adverse employment action. Furthermore, both employees and
non-employees can be held liable under this section. For example, an interviewer's
threat not to hire an employee may violate § 4(4A), even if the interviewer does not
have authority to act on the threat.
5. Frivolous Claims
The employer has the right to take appropriate disciplinary action against an employee
who makes a false or bad faith claim of sexual harassment. In addition, to the extent
that any willfully false claim constitutes resistance to or interference with the work of
the Commission, the person filing such a complaint may be subject to civil and/or
criminal penalties.
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