G401
November 4, 1998
Professor Rasmusen




                NOTES ON SEXUAL HARASSMENT

       These notes contain materials on sexual harassment. We started discussing
this yesterday, and will continue tomorrow.



TITLE VII.  It is "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."
(Title VII of the Civil Rights Act of 1964.   42 U.S.C. 2000e-2(a)(1).)


 
   


 
MERITOR.  The plaintiff bank employee claimed that  her supervisor had created a
hostile environment for her at her workplace by making repeated demands upon her
for sexual favors, demands with which she complied. She did not report his
behavior to anyone higher up in the bank. Some time after the problem had ceased
and when she was no longer employed there, she   sued both the bank and the
supervisor  for compensatory and punitive damages.  Meritor Savings Bank, FSB v.
Vinson , 477 U.S. 57 (1986).
 
       Meritor established that not just quid pro quo, but hostile environment
sexual harassment was actionable.  The U.S. Supreme Court ruled, in a Rehnquist
opinion,  that (a) Intangible harm is grounds for compensation even if there is
no tangible harm (thus establishing that "hostile environment" sexual harassment
was illegal); (b) Employers are not automatically liable for sexual harassment
by their supervisors, but they might be even if they are not informed of the
harassment; (c) "agency principles" apply whether the employer is liable for the
misdeeds of his agent.
 




ONCALE.  Plaintiff Oncale sued employer Sundowner  and  two  supervisors  and  a
co-worker  from his eight-man offshore oil rig crew  because  of offensive
homosexual actions, including physical assault.   After his complaints to
Sundowner were ignored, he quit, and sued,   alleging  that he was discriminated
against because of his sex. Oncale v. Sundowner Offshore Services, Inc., 118 Sct
998  (1998).





The U.S. Supreme Court ruled, in a Scalia opinion,  that Oncale was not barred
from his suit merely because both he and the defendants were male,   though he
would have to show that their behavior was "discrimination  on the basis of
sex".

ELLERTH.    Employee Ellerth sued her employer, Burlington, because    her
supervisor  had made offensive remarks and threats to her, even though the
threats had not been carried out. She never  complained to  Burlington, or used
its sexual harassment  grievance procedure. She quit Burlington, and then sued
saying that Burlington had forced her  constructive discharge.
Burlington v. Ellerth, 118 S Ct. 2257 (1998)

  
FARAGHER.  Lifeguard Faragher sued her employer, the City of Boca Raton, and her
supervisors alleging  that the supervisors had made offensive remarks and
threats, though the threats were not carried out. She  was unaware of the city's
sexual harassment policy, and  did not  notify the City of the supervisors'
behavior, though she did complain informally to another supervisor.
Faragher v. City of Boca Raton,  118 Sct 2275 (1998)

 Ellerth and Faragher arose because Meritor had left it unclear when the
employer was liable for  harassment  by supervisors if the victimized employee
did not notify the employer.  The U.S. Supreme Court ruling in Ellerth  (also
applied in   Faragher)  (by Justices Kennedy and Souter)   said:
 
 ``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.

...

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


        Something that shows up in a number of these cases is whether the
company is liable for sexual harassment if a supervisor  harasses an employee.
We'll be discussing that in class, and I'd like each of you to come up with an
opinion on that.