7

Sexual Harassment

CAUSE OF ACTION AND ELEMENTS

The statutory basis for sexual harassment claims is from Title VII of the Civil Rights Act of 1964, specifically 42 U.S.C. Section 2000e-2(a)(1). This cause of action is administered through the Equal Employment Opportunity Commission (EEOC), which essentially acts as a “gatekeeper” by evaluating and investigating sexual harassment claims. In order to have jurisdiction to pursue a sexual harassment claim in federal court, the EEOC must first issue a “right to sue letter.” Once submitted, the plaintiff has ninety (90) days to file the lawsuit in federal court. The failure to file within this time frame, or the failure to obtain a right to sue letter will prove fatal to the lawsuit.¹

Definitions and Concepts

The EEOC defines sexual harassment as “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of his conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or offensive work environment.”²

Hostile work environment sexual harassment claim under Title VII consists of five elements: (1) plaintiff belongs to protected group; (2) she was subjected to unwelcome sexual harassment; (3) harassment complained of was based on sex; (4) harassment affected term, condition, or privilege of her employment; and (5) employer knew or should have known of harassment and failed to take prompt remedial action.³ While this legislation does not explicitly articulate types of sexual harassment, courts have distinguished two specific examples: quid pro quo and hostile work environment.

Quid pro quo harassment typically occurs when a supervisor or someone in a position of authority requests sex, or a sexual relationship, in exchange for not firing or otherwise punishing the employee, or in exchange for favors, such as promotions, raises, re-assignment, or change in benefits. A hostile work environment is generally considered to result from the presence of demeaning or sexual photos, jokes, or threats. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether.⁴

The effects of these types of harassment have been further distinguished, with court decisions providing useful guidance as to the nature of the claim. For example, in hostile work environment cases, courts have noted that the environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.⁵ This assessment is made by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; and whether it is physically threatening or humiliating, as opposed to a merely offensive. The key is whether it unreasonably interferes with an employee’s work performance. Thus, Title VII does not prohibit simple teasing, offhand comments, and isolated incidents (unless extremely serious). These will not amount to discriminatory changes in the “terms and conditions of employment.”⁶

Significantly, the Faragher decision established that 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, the employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.⁷ The Burlington decision further articulated the significance of this principle. It stated “tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates.” A tangible employment decision requires an official act of the enterprise. Stated another way, it requires a company action. The decision in most cases is documented in official company records, and may be subject to review by higher-level supervisors. In this sense, the supervisor often must obtain the imprimatur of the enterprise and use its internal processes.⁸

Principles and Inquiries

Certain principles derived from relevant court decisions can be useful in evaluating sexual harassment claims:⁹ In such cases, the following issues should be considered:

2. Regardless of the source of the harassment, did employer conduct a prompt, objective, and thorough investigation?

3. Did the alleged harassment unreasonably interfere with the employee’s work performance?

4. Was the severity of the harassing behavior sufficient to be considered actionable?

5. How did the victim conduct himself or herself and what was the context of the harassment?

6. Has an adverse employment action occurred?

7. The size and the nature of the business involved may affect the amount of damages and even whether liability exists.

8. Sexual harassment can be actionable by people of the same sex.

Employer Defenses

From these questions and considerations, certain defenses available to the employer may be applicable, such as the following:¹⁰

2. Employer took reasonable steps to prevent the harassment.

3. Employer took immediate remedial measures to correct the harassing behavior.

4. Employee did not take advantage of remedial measures.

5. Employee did not timely complain about the alleged harassment.

6. Employer conducted timely, thorough, and fair investigation.

CASES

Background

Female employees of California Department of Corrections filed complaint against Department and its director, alleging claims of sex discrimination as articulated under the California Fair Employment and Housing Act (FEHA). The Superior Court, Sacramento County, granted summary judgment in favor of Department and director. Employees appealed. The court of appeal affirmed, and the supreme court granted review.

Holdings

The California Supreme Court held that triable issue of fact existed, precluding summary judgment, whether warden’s favoritism to three other subordinate woman employees with whom he had sexual affairs constituted sexual harassment. Judgment of the court of appeal reversed and matter remanded.

For the reasons explained below, we conclude that, although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as “sexual playthings” or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management.

In 1994, plaintiff Miller complained to Kuykendall’s superior officer at the CCWF, Warden Tina Farmon, about what she considered the “inappropriate situation” created by Kuykendall’s relationships with Bibb, Brown, and Patrick. Farmon informed Miller that she had addressed the issue.

In February 1995, the Department transferred plaintiff Miller to the Valley State Prison for Women (VSPW), where Kuykendall now served as warden. In May 1995, Miller served on an interview committee that evaluated Bibb’s application for a promotion to the position of correctional counselor, a position that would entail a transfer to VSPW. When the interviewing panel did not select Bibb, Miller and other members of the panel were informed by an associate warden that Kuykendall wanted them to “make it happen.” Miller declared: “This was … the first of many incidents which caused me to lose faith in the system … and to feel somewhat powerless because of Kuykendall and his sexual relations with subordinates.” There was evidence Bibb had bragged to plaintiff Mackey of her power over the warden, and a departmental internal affairs investigation later concluded Kuykendall’s personal relationship with Bibb rendered his involvement in her promotion unethical.

Bibb’s promotion was awarded despite the opposition of Patrick, who by now also had been transferred to VSPW. Miller believed that, as a result of Patrick’s sexual affair with Kuykendall, Patrick had been awarded the transfer to VSPW and enjoyed unusual privileges, such as reporting directly to Kuykendall rather than to her immediate superior. Miller confronted Brown, who now also was employed at VSPW, concerning Brown’s affair with Kuykendall. Brown, admitting the affair, bragged about her power over Kuykendall and stated her intention to use this power to extract benefits from him. Another Department employee, Frances Gantong, confirmed that, prior to Brown’s transfer to VSPW, Brown told Gantong that Kuykendall promised to secure Brown’s transfer to VSPW and to aid in her promotion to the position of facility captain. Miller also claimed Brown received special assignments and work privileges from Kuykendall, and Kuykendall’s secretary, Sandra Tripp, agreed with this assessment.

In July 1995, Brown and Miller competed for a promotion to a temporary post as facility captain at VSPW. Brown announced to Miller that Kuykendall would be forced to give her, Brown, the promotion or she would “take him down” with her knowledge of “every scar on his body.” Kuykendall served on the interview panel, conduct that the departmental internal affairs investigation report later branded unethical because of his sexual relationship with Brown. Brown received the promotion, despite Miller’s higher rank, superior education, and greater experience. According to Miller’s deposition, the officers involved in the selection process expressed surprise that Brown had been promoted, because they had recommended Miller for the higher position, and these officers and other employees commented to Miller that Brown’s selection was unfair. According to plaintiff’s estranged husband, William Miller, also a Department employee, many employees were upset by Brown’s promotion. They attributed the promotion to the sexual affair between Kuykendall and Brown, believing Brown to be unqualified. Brown and Miller later competed for promotion to a permanent facility captain position, and Brown again secured the promotion.

Within a year and a half, Brown was promoted to the position of associate warden, a pace of promotion that was unusually rapid. Kuykendall again served on the interview panel. Miller’s failure to be promoted to the position of facility captain made her ineligible to compete for higher-ranking positions, and Brown became her direct supervisor. According to Cooper, the internal affairs investigator, William Miller informed Cooper that other employees were outraged by the pace of Brown’s promotions and “employees were saying things like, what do I have to do, ‘F’ my way to the top?”

Miller stated in her deposition that she was afraid of complaining, because of the adverse employment actions taken against two other female employees who had complained concerning the warden’s affairs, Frances Gantong and Sandra Tripp. Department employees were aware of all three of Kuykendall’s sexual affairs at CCWF and VSPW, according to the Department’s internal affairs investigation and the declarations and deposition testimony of employees. The internal affairs report noted that, as to Bibb and Brown, “both relationships were viewed by staff as unethical from a business practice standpoint and one [sic] that created a hostile working environment.” During his investigation, internal affairs investigator Cooper encountered several employees who believed that persons who had sexual affairs with Kuykendall received special employment benefits. In her deposition, Cagie Brown acknowledged that there were widespread rumors that sexual affairs between subordinates and their superior officers were “common practice in the Department of Corrections” and that there were rumors that employees, including Bibb, secured promotion in this way.

Kuykendall conceded he had danced with Bibb at work-related social gatherings and there was evidence he telephoned her at home hundreds of times from his workplace. Employees, including Mackey and Miller, witnessed Bibb and Kuykendall fondling each other on at least three occasions at work-related social gatherings occurring between 1991 and 1998 where employees of the institution were present. One Department employee, Phyllis Mellott, also complained that at such a gathering Kuykendall had put his arms around her and another employee and made unwelcome groping gestures. Kuykendall was present with Bibb in 1998 when she was arrested for driving under the influence of alcohol, a circumstance of which Miller and other employees were aware. Kuykendall failed to initiate an internal affairs investigation concerning the incident or report his own involvement. He also conceded he had heard complaints that Patrick received favorable treatment because of her relationship with him.

Plaintiffs presented evidence that the three women who were having sexual affairs with Kuykendall—Patrick, Bibb, and Brown—squabbled over him, sometimes in emotional scenes witnessed by other employees, including Miller.

Miller experienced additional difficulties when chief deputy warden Vicky Yamamoto arrived at VSPW and interfered with Miller’s direct access to the warden. Miller initially believed the conflict between the two women was not gender based, but came to believe that Yamamoto’s subsequent interference with Miller’s authority occurred because Miller had refused dinner invitations that Yamamoto did not extend to male employees. Miller refused these invitations because she had heard that Yamamoto was a lesbian, and Miller assumed Yamamoto’s interest in her was sexual. Rumors circulated among prison employees that Yamamoto and Brown were engaged in a relationship that was “more than platonic.”

According to Miller, in 1997, during a peer review audit at another prison, Miller complained to Gerald Harris, a chief deputy warden at the facility who also served as a sexual harassment advisor for the Department, concerning Kuykendall’s sexual relationship with Brown and Brown’s close relationship with Yamamoto, adding that Yamamoto was disrupting the work of the institution and that Kuykendall had not disciplined Yamamoto. In her declaration, plaintiff Miller stated she informed Harris that “I felt I was working in a hostile environment based on the sexual relationship between Brown and Kuykendall and the close relationship between Brown and Yamamoto.” Following her meeting with Harris, Miller complained to Kuykendall concerning Brown and Yamamoto’s interference with her duties.

According to Miller, after her complaint to Kuykendall, Brown and Yamamoto made Miller’s work life miserable and diminished her effectiveness by frequently countermanding her orders, undermining her authority, reducing her supervisorial responsibilities, imposing additional onerous duties on her, making unjustified criticisms of her work, and threatening her with reprisals when she complained to Kuykendall about their interference.

In September 1997, Miller telephoned Brown to confront Brown concerning her relationship with Kuykendall and to complain about the mistreatment she had suffered at the hands of Brown and Yamamoto. During this conversation, which Miller permitted Mackey and others to overhear, Brown acknowledged that Yamamoto was heaping unjustified abuse on Miller and that Kuykendall was aware of Yamamoto’s mistreatment of Miller but would do nothing to rectify the situation. Miller subsequently informed Cooper, the internal affairs investigator that during this telephone conversation Miller had threatened to make a public announcement concerning the affair between Brown and Kuykendall.

The next day, Brown accused Miller of tape recording their telephone conversation. Brown entered Miller’s office, ordered plaintiff Mackey (Miller’s assistant) to leave, and then physically assaulted Miller, holding her captive for two hours. When Mackey went to Yamamoto to secure assistance for Miller, Yamamoto did not intervene. When Miller reported the affray to Kuykendall and threatened to report his relationship with Brown to higher authorities within the Department, Kuykendall responded that no one would believe her. Kuykendall told Miller to take time off from work and that upon her return she would not be required to report to Brown or Yamamoto. He subsequently awarded her a promotion. Kuykendall failed to investigate the assault after Miller complained to him. The internal affairs investigation concluded that Brown had committed assault and false imprisonment and that Kuykendall’s failure to intervene or to discipline Brown constituted a violation of Department policy.

Brown and Yamamoto continued to interfere with Miller’s work. Miller made further complaints to Kuykendall in 1998, eventually stating she planned to file a harassment complaint. Kuykendall explained there was nothing he could do about the harassment, because of his relationship with Brown and Brown’s relationship with Yamamoto. He complained of Brown’s untrustworthiness, stating he was “finished” with Brown and adding, “I should have chosen you.” Miller understood these words to mean “he should have chosen me to have a relationship with,” explaining, “I knew what he meant. He didn’t say what, but he meant as a relationship. That’s what I took it as.” When Miller announced she intended to file a harassment complaint against Kuykendall for his failure to control Brown and Yamamoto, Kuykendall advised her not to do so, stating she would only cause an ugly scandal. Miller continued that thereafter, “[p]retty much the institution was exploding … everybody was basically taking complaints to Mr. Kuykendall, and that’s when [the Office of Internal Affairs] came into the institution.”

Miller stated that she joined three other employees early in 1998 in complaining confidentially to Lewis Jones, Kuykendall’s superior officer and the Department’s regional administrator, concerning Yamamoto (and Kuykendall’s failure to curtail Yamamoto’s abuse of Miller), stating that the “institution was out of control.” She recalled that Jones stated “he was dealing with Mr. Kuykendall on the disruption of the institution,” but Miller did not observe any follow-up. She did not complain to Jones specifically about sexual harassment.

Later in 1998, regional administrator Jones recommended a departmental Office of Internal Affairs investigation, which, as noted above, began investigating misconduct on the part of Kuykendall, Yamamoto, and Brown. Miller was required to cooperate, and she informed investigating officer Cooper of Kuykendall’s sexual affairs with Brown, Bibb, and Patrick, and of the substance of Brown’s statements to her. Despite Cooper’s assurance of confidentiality, Miller soon found that Brown was aware of Miller’s statements, and Brown began a campaign of ostracism against Miller. According to Miller’s declaration and deposition testimony, Yamamoto also harassed Miller with unannounced inspections and interference with her orders; Kuykendall withdrew accommodations that previously had been accorded Miller because of a physical disability, and even the inmates appeared to believe that Miller had attempted to have Kuykendall’s employment terminated. On one occasion, Brown angrily confronted Miller about her statements to the internal affairs investigator, would not allow Miller to terminate the conversation, and followed Miller home to continue the harangue. Upon Miller’s complaint, a court order issued requiring Brown to stay away from Miller.

Miller suffered increasing stress and resigned from the Department on August 5, 1998. She filed a government tort claim with the Department in November 1998, followed by a complaint with the Department of Fair Employment and Housing in March 1999. She filed her complaint in superior court on June 15, 1999. As a result of the internal affairs investigation, Kuykendall retired, Yamamoto was transferred and demoted, and Brown resigned with disciplinary proceedings pending.

Plaintiff Frances Mackey joined the Department in 1975 as a clerk and received a number of promotions. She was transferred to VSPW in 1996 as a records manager, with the promise that she would continue to receive “inmate pay” (which apparently comprised certain enhanced salary benefits that emanate from handling inmates directly). At her interview for the new position, she announced her ambition to be promoted to a position as a correctional counselor. Kuykendall told her if she improved the VSPW records office, he would award her such a promotion.

Mackey was aware of Kuykendall’s sexual affairs with Bibb and Brown. In July 1997, Mackey learned that Brown, then associate warden of VSPW, believed Mackey had complained to Kuykendall concerning the sexual affair he was having with Brown. Mackey’s supplemental “inmate pay” was withdrawn. Brown also subjected Mackey to verbal abuse in the presence of coworkers. Mackey believed these actions constituted a warning not to disclose the affair between Kuykendall and Brown. Mackey was certain that Brown was promoted to the position of associate warden not because of merit, but because of her sexual affair with Kuykendall. Mackey claimed Brown demeaned her in the presence of other employees and impeded the execution of Mackey’s duties in various respects, and stated: “This situation created hostility among the employees in [Mackey’s] Department.” As observed by the Court of Appeal, “[t]he environment around the office became increasingly hostile because of Kuykendall’s inability to control Brown.” Mackey “felt powerless to take any action about the situation.” Mackey was persuaded not to jeopardize her career, having observed the termination of the employment of another woman who had complained about Kuykendall’s “improper affair.” In September 1997, Mackey overheard Brown’s telephone call to Miller and the next day observed Brown’s physical assault on Miller. Mackey attempted to intervene to assist Miller. Miller told Mackey the assault occurred after she informed Brown she planned to complain concerning Brown’s relationship with Kuykendall and “how it was affecting her career.” Brown continued to demean Mackey in the presence of other employees and to interfere with the execution of her duties.

According to Mackey, correctional employee Greg Mellott told Mackey that his wife, also a correctional employee, had heard arguments between Bibb and Brown concerning Kuykendall. In her declaration, Mackey stated that “Greg Mellott revealed to me that the sexual relationships Kuykendall was having with Bibb and Brown [were] creating an impossible environment for his wife to work in” and that his wife had filed a complaint “about the improper practices she experienced in her employment.”

Mackey was assured that her statements to the internal affairs investigator would be kept confidential, but they were not. Kuykendall subsequently reduced her responsibilities and denied her access to the work experience she needed in order to be promoted to the position of correctional counselor. Mackey testified in her deposition that she believed she failed to receive a promotion to that position because she was not sexually involved with Kuykendall.

In addition, Brown repeatedly interrogated Mackey about her statements to the internal affairs investigator and attempted to contact Mackey outside of work. Stress led to health problems, and Mackey was unable to work between August 1998 and January 1999. Upon her return to work, Mackey was demoted and suffered further mistreatment and humiliation. A few months later she resigned, finding the conditions of employment intolerable. Mackey filed a government tort claim with the Department in February 1999 and filed a complaint with the Department of Fair Employment and Housing in March 1999. Mackey joined Miller in filing suit on June 15, 1999, alleging, among other claims, sexual discrimination and retaliation in violation of the FEHA.

Past California decisions have established that the prohibition against sexual harassment includes protection from a broad range of conduct, ranging from expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances, to the creation of a work environment that is hostile or abusive on the basis of sex. Such a hostile environment may be created even if the plaintiff never is subjected to sexual advances. In one case, for example, a cause of action based upon a hostile environment was stated when the plaintiff alleged she had been subjected to long-standing ridicule, insult, threats, and especially exacting work requirements by male coworkers who evidently resented a female employee’s entry into a position in law enforcement.

We have agreed with the United States Supreme Court that, to prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. The working environment must be evaluated in light of the totality of the circumstances:

[W]hether 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.

Our courts frequently turn to federal authorities interpreting Title VII of the Civil Rights Act. Although the FEHA [state statute] explicitly prohibits sexual harassment of employees, while Title VII does not, the two enactments share the common goal of preventing discrimination in the workplace. Federal courts agree with guidelines established by the Equal Employment Opportunity Commission, the agency charged with administering Title VII, in viewing sexual harassment as constituting sexual discrimination in violation of Title VII. In language comparable to that found in FEHA regulations, federal regulatory guidelines define sexual harassment as including unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that has the “purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

A lengthy policy statement issued by the EEOC has examined the question of sexual favoritism, relying in part upon a number of federal court decisions that have considered the kind of harassment claim brought by plaintiffs, namely one based principally on the favoritism shown by supervisors to employees who are the supervisors’ sexual partners. In its 1990 policy statement, the EEOC observed that, although isolated instances of sexual favoritism in the workplace do not violate Title VII, widespread sexual favoritism may create a hostile work environment in violation of Title VII by sending the demeaning message that managers view female employees as “sexual playthings” or that “the way for women to get ahead in the workplace is by engaging in sexual conduct.” We believe the policy statement provides a useful guide in evaluating the issue before us.

The EEOC policy statement is entitled Policy Guidance on Employer Liability under Title VII for Sexual Favoritism. The policy statement begins with an explanation that “an isolated instance of favoritism toward a ‘paramour’ (or a spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders. A female charging party who is denied an employment benefit because of such sexual favoritism would not have been treated more favorably had she been a man, nor, conversely, was she treated less favorably because she was a woman.”

The EEOC also discusses sexual favoritism that is more than isolated and that is based upon consensual affairs:

An analogy can be made to a situation in which supervisors in an office regularly make racial, ethnic or sexual jokes. Even if the targets of the humor “play along” and in no way display that they object, coworkers of any race, national origin or sex can claim that this conduct, which communicates a bias against protected class members, creates a hostile work environment for them.

In addition, according to the EEOC, “managers who engage in widespread sexual favoritism may also communicate a message that the way for women to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment. This can form the basis of an implicit ‘quid pro quo’ harassment claim for female employees, as well as a hostile environment claim for both women and men who find this offensive.”

Following the guidance of the EEOC, and also employing standards adopted in our prior cases, we believe that an employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment. Furthermore, applying this standard to the circumstances of the present case, we conclude that the evidence proffered by plaintiffs, viewed in its entirety, established a prima facie case of sexual harassment under a hostile-work-environment theory. As we shall explain, a trier of fact reasonably could find from the evidence in the record set forth below that a hostile work environment was created in the workplace in question.

Over a period of several years, Warden Kuykendall engaged concurrently in sexual affairs with three subordinate employees, Bibb, Patrick, and Brown. There was evidence these affairs began in 1991 and continued until 1998. The affairs occurred first while Kuykendall and the women worked at CCWF, then continued when these individuals all transferred to VSPW. Kuykendall served in a management capacity at both institutions and served as warden at VSPW. When Kuykendall transferred from CCWF to VSPW, there was evidence he caused his sexual partners to be transferred to the new institution to join him. There was evidence Kuykendall promised and granted unwarranted and unfair employment benefits to the three women. One of the unfair employment benefits granted to Brown evidently was the power to abuse other employees who complained concerning the affairs. When plaintiffs complained, they suffered retaliation (and they believed two other employees were similarly targeted). Kuykendall refused to intervene and himself retaliated by withdrawing previously granted accommodations for Miller’s disability after she cooperated with the internal affairs investigation.

Further, there was evidence that advancement for women at VSPW was based upon sexual favors, not merit. For example, Kuykendall pressured Miller and other employees on the personnel selection committee to agree to transfer Bibb to VSPW and promote her to the position of correctional counselor, despite the conclusion of the committee that she was not eligible or qualified. Committee members were told to set aside their professional judgment because Kuykendall wanted them to “make it happen.”

In addition, on two occasions Kuykendall promoted Brown to facility captain positions in preference to Miller, although Miller was more qualified. Brown enjoyed an unprecedented pace of promotion to the managerial position of associate warden, causing outraged employees to ask such questions as, “What do I have to do, ‘F’ my way to the top?” Even Brown acknowledged that affairs between supervisors and subordinates were common in the Department and were widely viewed as a method of advancement. Indeed, Brown made it known to Miller that the facility captain promotion belonged to her because of her intimate relationship with Kuykendall, announcing that if she were not awarded the promotion she would “take him [Kuykendall] down” because she “knew every scar on his body.”

There also was evidence that Kuykendall promoted Bibb from clerical to correctional staff duties despite her lack of qualifications, and at the same time refused to permit Mackey to secure the on-the-job training that would have enabled her to make a similar advance. On the basis of her knowledge of Kuykendall’s sexual affairs, Mackey believed the reason he denied her this opportunity was that she was not his sexual partner.

The evidence suggested Kuykendall viewed female employees as “sexual playthings” and that his ensuing conduct conveyed this demeaning message in a manner that had an effect on the work force as a whole. Various employees, including plaintiffs, observed Kuykendall and Bibb fondling one another on at least three occasions at work-related social gatherings. One employee reported that Kuykendall had placed his arm around her and another female employee during one such social event, adding that Kuykendall had engaged in unwelcome fondling of her as well. Bibb and Brown bragged to other employees, including plaintiffs, of their power to extort benefits from Kuykendall.

Jealous scenes between the sexual partners occurred in the presence of Miller and other employees. Several employees informed the internal affairs investigator that persons who were engaged in sexual affairs with Kuykendall received special benefits. When Miller last complained to Kuykendall, he told her that Brown was manipulative, adding he was “finished” with Brown and should have chosen Miller—a comment Miller reasonably took to mean that he should have chosen Miller for a sexual affair.

There was evidence Kuykendall’s sexual favoritism not only blocked the way to merit-based advancement for plaintiffs, but also caused them to be subjected to harassment at the hands of Brown, whose behavior Kuykendall refused or failed to control even after it escalated to physical assault. This harassment, apparently retaliatory, included loss of work responsibilities, demeaning comments in the presence of other employees, loss of entitlement to a pay enhancement and to disability accommodation, and physical assault and false imprisonment. Kuykendall explained to Miller that, because of his intimate relationship with Brown, he would not protect plaintiffs. In this manner, his sexual favoritism was responsible for the continuation of an outrageous campaign of harassment against plaintiffs.

Considering all the circumstances “from the perspective of a reasonable person in the plaintiff’s position” and noting that the present case is before us on appeal after a grant of summary judgment, we conclude that the foregoing evidence created at least a triable issue of fact on the question whether Kuykendall’s conduct constituted sexual favoritism widespread enough to constitute a hostile work environment in which the “message [was] implicitly conveyed that the managers view women as sexual playthings” or that “the way for women to get ahead in the workplace is by engaging in sexual conduct” thereby “creating an atmosphere that is demeaning to women.” In terms we previously have borrowed from the United States Supreme Court in measuring sexual harassment claims, there was evidence of “sufficiently severe or pervasive” conduct that “altered the conditions of [the victims’] employment” such that a jury reasonably could conclude that the conduct created a work environment that qualifies as hostile or abusive to employees because of their gender.

We believe it is clear under California law that a plaintiff may establish a hostile work environment without demonstrating the existence of coercive sexual conduct directed at the plaintiff or even conduct of a sexual nature. Finally, we believe that even those courts focusing on a “sexually charged environment” would be satisfied that a triable issue of fact was presented by the evidence in this case, in view of the bragging, squabbling, and fondling that occurred.

To the extent defendants’ contention is that a reasonable person in plaintiffs’ position would not have found the work environment to have been hostile toward women on the basis of widespread sexual favoritism, we conclude that the lower courts erred in precluding plaintiffs from presenting this issue to a jury. The internal affairs investigation within the Department confirmed that Kuykendall’s sexual favoritism occurred and was broadly known and resented in the workplace, and that several employees—including Brown—concluded that engaging in sexual affairs was the way required to secure advancement. There was evidence from which a jury reasonably could conclude that the entire scheme of promotion at VSPW was affected by Kuykendall’s favoritism.

Certainly, the presence of mere office gossip is insufficient to establish the existence of widespread sexual favoritism, but the evidence of such favoritism in the present case includes admissions by the participants concerning the nature of the relationships, boasting by the favored women, eyewitness accounts of incidents of public fondling, repeated promotion despite lack of qualifications, and Kuykendall’s admission he could not control Brown because of his sexual relationship with her—a matter confirmed by the Department’s internal affairs report. Indeed, it is ironic that, according to defendants, a jury should not be permitted to consider evidence of widespread sexual favoritism that the Department itself found convincing.

Finally, defendants warn that plaintiffs’ position, if adopted, would inject the courts into relationships that are private and consensual and that occur within a major locus of individual social life for both men and women—the workplace. According to defendants, social policy favors rather than disfavors such relationships, and the issue of personal privacy should give courts pause before allowing claims such as those advanced by plaintiffs to proceed. Defendants urge it is safer to treat sexual favoritism as merely a matter of personal preference, and to recall that the FEHA is not intended to regulate sexual relationships in the workplace, nor to establish a civility code governing that venue.

We do not believe that defendants’ concerns about regulating personal relationships are well founded, because it is not the relationship, but its effect on the workplace, that is relevant under the applicable legal standard. Thus, we have not discussed those interactions between Kuykendall and his sexual partners that were truly private. Moreover, the FEHA already clearly contemplates some intrusion into personal relationships. Specifically the FEHA recognizes that sexual harassment occurs when a sexual relationship between a supervisor and a subordinate is based upon an asserted quid pro quo.

For the foregoing reasons, the judgment of the court of appeal is reversed to the extent it is inconsistent with our opinion, and the matter is remanded to the court of appeal for further proceedings consistent with this opinion.

CASE COMMENT

In this factually specific case, the court found that the series of sexual liaisons between Kuykendall and his female subordinates were sufficient to state a claim of sexual harassment initiated by another female employee. While the plaintiff was not part of the sexual affairs within the workplace, she could sustain a claim of sexual harassment against her employer. In reaching this decision, the court placed great emphasis on the affect of the sexuality within the workplace. Specifically, the message it conveyed to female employees is that they are viewed by management as “sexual playthings” or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management. This sexually charged environment was deemed to have a sufficient factual basis to send the case to the jury. Thus, in a rather novel case, the court held the plaintiff could sustain a sexual harassment claim when she was not a target of the harassment or a participant in the sexual relations.

Jan. 17, 2006

Background

Former security guard sued former employer under Title VII and Massachusetts antidiscrimination statute, alleging sexual harassment and retaliation. Former employer moved for summary judgment.

Holdings

The district court held that:

2. Employer was not liable for any sexual harassment committed by alleged harasser as coworker; and

3. Security guard’s transfer to another site was not adverse employment action.

The defendant Abedekader Kouidri was another employee of Celadon who worked as a security officer. At no time did Kouidri have any supervisory authority with respect to any other employee of Celadon, including Newell. As detailed, however, Newell contends that she thought that he was a supervisor. Prior to the incident which forms the basis of the instant litigation, Celadon had never received any complaints about Kouidri from any other employee or client alleging sexual harassment or any other type of discriminatory conduct.

As of May 2001, Celadon had at least 150 security officers and provided security to over 30 separate facilities. The security officers were routinely transferred to different facilities. At the start of her employment with Celadon, Newell was given written “Employment Terms & Conditions” which expressly stated that “I also understand that I am not assigned to any one particular site and at the companies’ [sic] discretion may be moved at any time.” During her employment with Celadon, Newell worked at approximately a dozen locations. Celadon security officers were required to wear uniforms when they were on duty, while certain supervisors were required to wear suits. As security officers, Newell and Kouidri were required to wear uniforms during their shifts.

Celadon provides all new employees with written employment policies, which are included in a document entitled “Celadon Employment Terms & Conditions.” This document includes Celadon’s policies prohibiting discrimination.

Events of May 5, 2001

On May 5, 2001, Newell and Kouidri were working at One Kendall Square. Newell worked two shifts that day, and she describes the relevant event as follows.

During the second shift, I was asked by the older security guard on the site to accompany Kouidri on a tour of the building so that I would know what to do in case I had to work alone. During this tour, Kouidri brought me to the basement in a poorly lit area. Kouidri grabbed my breast. I pushed him away. He then pushed me against the wall and kissed me. Apparently, the rest of the shift was uneventful. Newell reported the incident to Celadon two days later, on May 7, 2001.

Newell does not dispute that Kouidri was not actually a supervisor. However, she contends that she believed he was a supervisor because he was in “street clothes,” not in uniform, on May 5, 2001, as well as on the one previous occasion she had seen him, and because he had a walkie-talkie. According to Newell, Kouidri’s street clothes were a sweater and pants, not a suit. Newell admits that she never asked whether Kouidri was her supervisor, and he never said that he was a supervisor. Newell does not contend that, on the day of the incident, Kouidri purported to exert any supervisory authority over her. On the one earlier occasion that she had seen him, Kouidri was walking around a construction site and she was located at a desk. When he passed her, Kouidri allegedly yelled at her and ordered her to return to her desk when she left her desk to get a soda. Additionally, he was very pushy. According to Newell, however, when Kouidri suggested that she change her location, she simply disregarded the suggestion.

Celadon’s Response to Newell’s Complaint

Newell completed her shift on May 5, 2001, and worked at the same facility on May 6, 2001 (Sunday) and May 7, 2001 (Monday). On May 7, 2001 she reported the incident to a supervisor Frank Doran, and her immediate supervisor Rodney Butler was also notified. At the time of the report, according to Celadon, Kouidri was on vacation, and he voluntarily resigned at the end of the vacation without responding to Celadon’s request to discuss the incident. Celadon contends that it tried to discuss the incident with Newell, but that she failed to respond to various calls, which Newell denies.

It is undisputed that Newell was assigned to work at Marina Bay in Quincy, a first-class condominium complex, beginning on Tuesday, May 8, 2001, through Friday, May 11, 2001. Newell had worked there previously, on May 3, 2001, as well. It also is undisputed that her shift was 5:00 p.m. to midnight Tuesday through Thursday. Marina Bay was difficult to get to by public transportation, and impossible to get home from, and Newell did not have a car. Consequently, Rodney Butler arranged for another supervisor, Defendant Keith Green, to pick Plaintiff up at the end of the shift at Marina Bay to take her home to Dorchester. Mr. Green picked Newell up at approximately 11:30 p.m. Tuesday through Thursday, May 8 through 10, 2001, without incident, and drove her home. Celadon contends that, consistent with the Friday and Saturday night shifts at Marina Bay, Newell’s shift on Friday, May 11, 2001, was to end at 1:00 a.m., not midnight. Newell contends that her shift was to end at midnight, that she waited for Mr. Green until 12:45 a.m. and that when he failed to pick her up she started to walk home. According to Newell, the phone at Marina Bay did not work. Although it was a residential complex, Newell apparently did not ask to use anyone’s phone, but rather started to walk home from Quincy to Dorchester. The walk home was very frightening, and eventually Newell made her way to a nursing home where she called a friend and made arrangements to get home.

Newell claims that she does not know the reason for her transfer to another site following her complaint. Newell asserts, and Celadon disputes, that the transfer to Marina Bay was “disadvantageous to her” in that it was inaccessible by public transportation, Newell worked alone and had no operable phone, and there were no double shifts available for extra money. According to Newell, she was paid $8.50 per hour at Celadon, except for training, but she only received $6.50/hour at Marina Bay. However, Newell’s payroll records establish that she was paid $8.50/hour at Marina Bay, too.

On Friday, May 18, 2001, Newell went to Celadon and resigned. She signed a Separation Form confirming that she had “no claims against Celadon or any of its employees.” Nevertheless, Newell filed a complaint with the MCAD. The Commission was “unable to conclude that the information obtained establishes a violation of the [discrimination] statutes” and dismissed the complaint on September 16, 2003. Newell commenced the instant litigation on March 1, 2004.

Newell asserts that she was very traumatized by her experiences at Celadon, suffered a severe deterioration in her mental health condition and had to be hospitalized. Newell has suffered from a major mental illness since she was approximately 16 years old. As a result of the events at Celadon, Newell contends that she was unable to maintain regular employment for approximately one year. Additional facts will be provided below where appropriate.

Celadon’s Liability for Sexual Harassment

by Kouidri

Newell’s claims are based on the alleged sexual harassment perpetrated against her by her coworker, Kouidri. Sexual harassment is unlawful under both federal and state law. Thus, Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer ... to discriminate 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. Section 2000e-2(a)(1).

The applicable standards for assessing an employer’s liability for its employees’ conduct depend upon whether the offending employee is a supervisor or simply a coworker. Where the offending employee is a supervisor, the federal and state laws differ. Under federal law, an employer is vicariously liable when a supervisor creates a hostile work environment, subject, however, to a possible affirmative defense, commonly known as the Faragher/Ellerth defense, based on the relevant Supreme Court cases. The Faragher/Ellerth defense, which is available in the absence of a tangible adverse job action, “consists of two elements which, if proven, permit the employer to avoid liability. First, the employer must show that it exercised reasonable care to prevent and correct promptly the harassment. Second, the employer must show that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Under Massachusetts law, however, employers are “strictly liable for supervisory harassment” so the Faragher/Ellerth defense is not available.

When coworkers, rather than supervisors, are the perpetrators of sexual harassment, both Title VII and Mass. Gen. Laws ch. 151B, apply the same standard in assessing employer liability. In such circumstances, “an employer can only be liable if the harassment is causally connected to some negligence on the employer’s part. Typically, [under federal law] this involves a showing that the employer knew or should have known about the harassment, yet failed to take prompt action to stop it. This court concludes that Kouidri cannot be deemed to be a supervisor, and, consequently, Celadon is not liable under a theory of strict liability. The record also fails to establish that Celadon is liable under the lesser standard applied to coworker harassment.

1. Kouidri’s Status—Co-employee or Supervisor

“The key to determining supervisory status is the degree of authority possessed by the putative supervisor. Thus, courts must distinguish employees who are supervisors merely as a function of nomenclature from those who are entrusted with actual supervisory powers.” The First Circuit, considering “both common law agency principles and the purposes of the anti-discrimination and anti-retaliation laws” has determined that “the essence of supervisory status is the authority to affect the terms and conditions of the victim’s employment,” with such authority consisting primarily “of the power to hire, fire, demote, promote, transfer, or discipline an employee.” Without some modicum of this authority, a harasser cannot qualify as a supervisor for purposes of imputing vicarious liability to the employer in a Title VII case, but, rather, should be regarded as an ordinary coworker. The same standard is applicable under Massachusetts state law.

In the instant case, the record is clear that Celadon did not grant Kouidri any supervisory authority over any other employees, including Newell. Without belaboring the point, Kouidri had no authority to take any steps which would affect the terms or conditions of any co-employee’s employment. Consequently, there is no strict liability on the basis that Kouidri was a supervisor as a matter of fact.

2. The Doctrine of Apparent Authority

An employee may be deemed to be a supervisor under the doctrine of apparent authority. Thus, as the Supreme Court recognized in Ellerth, the “scope of employment does not define the only basis for employer liability under agency principles. In limited circumstances, agency principles impose liability on employers even where employees commit torts outside the scope of employment. The principles are set forth in the much-cited Section 219(2) of the Restatement” of the Law, Second, Agency, which provides, in relevant part, that the “master” may be liable where: “the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.”

In the instant case, the factual record does not support Newell’s conclusion that she believed that Kouidri was her supervisor, with the type of authority sufficient to impose liability on Celadon for his behavior. Even if the record was sufficient, such a belief would not be reasonable. Therefore, as a matter of law, the facts presented by Newell do not support a finding of apparent authority.

In the instant case, there is no evidence that Newell believed Kouidri could significantly influence the terms and conditions of her employment or that Kouidri attempted to do so. According to the plaintiff, her immediate supervisor, who gave her work assignments, was Rodney Butler. She describes Kouidri as “an employee of Celadon.” On the date of the incident, another security guard asked Newell to accompany Kouidri on a tour. Thus, Kouidri did not direct Newell in any way in connection with taking the tour of the building, much less purport to exert supervisory authority over her in connection with taking the tour. Once in the basement, Kouidri allegedly exerted physical force against the plaintiff. There is no evidence that he tried to exhort her to submit to his authority or otherwise threaten to affect the terms or conditions of employment.

While Newell claims that she believed Kouidri was a supervisor, there is no evidence that she believed he had the power to control her employment with Celadon. Thus, the totality of the relevant facts proffered by the plaintiff is as follows:

I believed that Kouidri was a supervisor at Celadon. Kouidri wore street clothes instead of a security uniform like the security guards wore. I had seen Kouidri once before at the same site. Kouidri wore street clothes then as well. My experience at Celadon was that supervisors did not wear security uniforms.

Kouidri acted like a supervisor on the earlier occasion. At that time, when I left my desk to get a soda, Kouidri yelled at me and ordered me to return to my desk. He told me that I was supposed to sit there and stay there. He was very pushy. He acted like a supervisor. He also walked around with a walkie-talkie. I was never given a walkie-talkie by Celadon. At most, Kouidri was pushy—there is nothing in the record that distinguishes his conduct towards her from an annoyed coworker who felt his colleague was not attending to her responsibility.

Newell does not assert that she believed that Kouidri could hire, fire or promote her, alter her job assignments or otherwise affect the terms and conditions of her employment. Nor is there any evidence that she went on the tour with Kouidri because of her mistaken belief as to his status. In fact, Newell testified that on an earlier occasion when Kouidri made a suggestion as to where she should sit, she disregarded the suggestion. Obviously, she did not feel that Kouidri had the authority over her to even change the location of her seat, much less hire or fire her. The facts put forward by the plaintiff simply do not rise to the level of creating vicarious liability on the part of Celadon for the activities of an employee mistakenly believed to be a supervisor by a co-employee. Moreover, any mistaken belief by the employee would simply not be reasonable.

3. Celadon’s Liability for Co-employee

Harassment

As detailed above, under both federal and Massachusetts law, “an employer is liable for the sexual harassment perpetrated by an employee if it knew or should have known of the harassment, unless the employer can show it took appropriate steps to halt the harassment.” The undisputed facts establish that Celadon had no prior complaints about Kouidri or any information that would have led the company to believe that he would act inappropriately toward Newell or any other person. Under such circumstances, Newell has failed to establish Celadon’s liability for the wrongful conduct of its employee.

Moreover, to the extent that Celadon’s response to the situation is relevant, it was “prompt and appropriate.” The response “must be reasonably calculated to prevent further harassment under the particular facts and circumstances of the case at the time the allegations are made.” Here, Newell and Kouidri were separated and did not work together again. Regardless whether there was a full investigation, Kouidri did not return to work and he was deemed not eligible for rehire. That was sufficient.

Newell’s Claim of Retaliation

Newell contends that Celadon retaliated against her for complaining about Kouidri’s behavior. Thus, she complains that she “was transferred by Celadon to a less advantageous assignment with lower pay. Celadon, despite its denial, failed to provide plaintiff with an operable telephone at the site. In addition, Celadon left plaintiff stranded at that remote site on her last date of work.” Because Newell has failed to establish that she suffered an adverse job action or that the transfer was wrongfully motivated, summary judgment must be entered in favor of Celadon.

Retaliation for engaging in a protected activity such as complaining about sexual harassment is prohibited under both federal and state law. Thus, under Title VII:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

1. Adverse Employment Action

“Prohibited retaliatory actions are those that constitute a change in working conditions that create a material disadvantage in the plaintiff’s employment.” Adverse employment actions include, but are not limited to, “demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees.” In each case, the action must have been motivated by a wrongful intent.

Here, Newell “has failed to offer facts indicating that [her] informal complaint caused any adverse actions.” While she complains about Marina Bay being a less favorable locale, when she signed on as an employee of Celadon her conditions of employment specifically recognized the fact that she would be assigned to different locations. Newell had worked at Marina Bay before the incident, and it was a regular site for which Celadon provided security guards. To the extent that transportation home was a problem, Celadon provided her with transportation, and her contention that she was paid less at the Marina Bay site is simply not supported by the record. Moreover, even accepting as true Newell’s claim that the phone did not work at Marina Bay, there is no evidence to support a conclusion that having an inoperable phone was intentional or that it was anything other than a short-term problem. It was clearly contrary to the best interest of Celadon to tolerate a situation where its personnel, who were hired to provide security, did not have access to backup help in case of an emergency.

In short, Newell has failed to establish that the transfer to Marina Bay was an adverse employment action. It is well established that “a transfer or reassignment that involves only minor changes in working conditions normally does not constitute an adverse employment action.” “The evidence presented here showed—at most—that the transfer resulted in some minor, likely temporary, changes in [Newell’s] working conditions.” Since Newell failed to prove that Celadon “took any action against [her] at all which was substantial enough to count as the kind of material disadvantage that is a predicate for a finding of unlawful retaliation,” her claim must fail. Her claims “amount to no more than subjective feelings of disappointment and disillusionment. [She] offered no objective evidence that [she] had been disadvantaged in respect to salary, grade, or other objective terms and conditions of employment.”

Newell’s claim must fail for the additional reason that she has failed to establish “a causal link between the tangible employment action and the alleged harassment and harasser.” There is simply nothing in the record to support a conclusion that the transfer was in any way intended to punish Newell. Rather, serving at different locales was a regular part of her job and the Marina Bay location was regularly served by Celadon.

2. Retaliatory Hostile Environment

Newell’s claim that Celadon failed to pick her up on Friday night after work does not alter this court’s conclusion that the record is insufficient to establish retaliation. Reading the record in the light most favorable to Newell, the company agreed to and did provide transportation to her for several nights. On Friday night, her lift did not come. The company’s explanation that there was a misunderstanding as to when Newell’s shift ended is logical and has not been refuted by the plaintiff. There is nothing in the record from which a jury could logically infer that Celadon anticipated that Newell would walk home if her ride did not appear. As Marina Bay is a residential complex, not a deserted warehouse, there were other phones around, even if they were not convenient. To the extent that Newell claims that she was intentionally stranded, her conclusion is based solely on “improbable inferences, and unsupported speculation” which is insufficient to overcome a motion for summary judgment.

Even assuming Newell was intentionally stranded, the record does not support a conclusion that Newell was subjected to a retaliatory hostile work environment. An employer “will be liable for retaliation if it tolerates severe or pervasive harassment motivated by the plaintiff’s protected conduct.” Even assuming that Celadon intentionally failed to drive Newell home, this incident was not so “severe or pervasive that it alter[ed] the conditions of the plaintiff’s employment.” While there are circumstances where one incident may be so severe as to create a hostile work environment, this is not such a situation. This one event, for which Celadon has offered a logical explanation, is insufficient to establish wrongful conduct or intent on the part of the defendant.

This court does not doubt that Newell sincerely believes that Celadon acted for the purpose of causing her harm. However, her “subjective and intangible impressions” are insufficient to support a retaliation claim and cannot form the basis “for legal intervention in the often fraught and delicate domain of personnel relations.”

Conclusion

The plaintiff has failed to establish that Celadon is liable for the wrongful conduct of its employee, Kouidri, and has failed to establish a claim of wrongful retaliation for her complaint about Kouidri. For all the reasons detailed herein, Celadon’s Motion for Summary Judgment is ALLOWED.

CASE COMMENT

This case provides an excellent example of the distinction between of harassment by a supervisor and harassment by a coworker. Clearly, it is easier to exert liability against the employer if the harassment comes from a supervisor. The court assessed the legal standard for a “supervisor,” noting that the individual must possess the power to hire, fire, demote, promote, transfer, or discipline an employee. The alleged harasser did not possess these powers. Indeed, the court held that based on the facts of this case, it would be unreasonable for the plaintiff to even perceive the alleged harasser had such powers. In addition, the court held that the transfer of the plaintiff was not an adverse employment action, and that the failure to give her a ride home was not retaliation for complaining of sexual harassment. Based on these reasons, the court affirmed summary judgment against the plaintiff.

DISCUSSION QUESTIONS

If a supervisor sexually harasses a subordinate, is the employer automatically liable? If not, what other factor(s) must the plaintiff show? Can an employer limit its exposure in a sexual harassment case in any way? If so, how? If a male subordinate gropes a female supervisor, can the employer be liable? Explain your answer in light of the relevant legal standards and principles.

NOTES

1. Fridkin, Michael K., and Cythina A. Wilson (2002). Title VII and Section 1981: A Guide for Appointed Attorneys in the Northern District of Illinois, provided by Chicago Lawyers’ Committee for Civil Rights.

2. Rubin, Paula N. (1995). Civil Rights and Criminal Justice: A Primer on Sexual Harassment. National Institute of Justice, Office of Justice Programs, October.

3. See Civil Rights Act of 1964, Section 701 et seq., and 42 U.S.C.A. Section 2000e et seq.

4. Burlington Industries, Inc. v. Kimberly B. Ellerth, 524 U.S. 742 (1998).

5. Beth Ann Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

6. Ibid.

7. Ibid.

8. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

9. See for example Schwartz v. Bay Industries, Inc., 274 F. Supp. 1041 (2003); Tutman v. WBBM-TV, 209 F. 3d 1044 (2000); Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998); and Haugerud v. Amery School District, 259 F. 3d 678 (2001) for application of these principles.

10. See above cases for these defenses plus two U.S. Supreme Court cases cited earlier.