Sexual Harassment and the Law

by Arthur F. Silbergeld and Margaret A. DeGooyer

When Congress debated Title VII of the 1964 Civil Rights Act, no federal law prohibited sexual harassment at work. Just before the legislation passed, a Virginia congressman, hoping to kill the bill, added the word sex to the list of unlawful factors already including race, color, religion, and national origin. He found instant support in unlikely quarters: Women's groups--including the President's Commission on the Status of Women, headed by Eleanor Roosevelt and including Mary Bunting, president of Radcliffe College--opposed the bill's prohibition against sex discrimination because "discrimination based on sex ... involves problems sufficiently different from discrimination based on the other factors listed to make separate treatment preferable." Rep. Edith Green, a progressive from Oregon, opposed including "sex," believing that it would endanger passage of the race-discrimination ban. Imagining the "upheaval that would result from adoption of blanket language requiring total [gender] equality," the powerful New York Democrat Emanuel Cellar lamented, "What would become of the traditional family relationships?" (See 110 Cong. Rec. 2577 – 2581 (1964).)

Despite all this opposition, and without further discussion of the implications, on July 1, 1965, sex became one of the five protected categories that employers could no longer consider in making most personnel decisions. (42 U.S.C. § 2000e-2(a)(1).)

Because Congress did not define the term "sex," courts initially rejected sexual harassment as an attribute of sex discrimination. Courts viewed incidents of harassment as the result of supervisory whims for which an employer could not be liable (Tompkins v. Pub. Serv. Elec. & Gas Co., 422 F. Supp. 553 (D.N.J. 1976).) Not until 1980 did the Equal Employment Opportunity Commission's guidelines provide a road map for identifying sexual harassment as a form of prohibited discrimination. According to the EEOC's definition, it entails "[u]nwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature ... when (1) submission to conduct is made either exclusively or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual's work, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." These guidelines laid the groundwork for pioneering sexual harassment decisions that identified two forms of actionable sexual harassment: quid pro quo, and hostile environment. (See Bundy v. Jackson (641 F.2d 934 (D.C. Cir. 1981)) and Henson v. City of Dundee (682 F.2d 987 (11th Cir. 1982)).)

Hostile Environment
In Meritor Savings Bank v. Vinson (477 U.S. 57 (1986)), the U.S. Supreme Court validated sexual harassment as a type of sex discrimination prohibited by Title VII. The Court held that even if the plaintiff does not resist sexual advances and no tangible economic harm results, sexual harassment occurs when an employee is subjected to severe and pervasive unwelcome sexual conduct as a term or condition of employment. The Court distinguished between quid pro quo harassment--occurring when a supervisor conditions job retention or benefits on a subordinate's submission to sexual demands--and harassment involving unwelcome sexual conduct so severe and pervasive as to create a "hostile working environment." It directed employers to establish a policy against harassment, investigate claims, and take immediate corrective action.

Years later, in Harris v. Forklift Systems Inc. (510 U.S. 17 (1993)), the Court held that a violation of Title VII requires two findings: First, the conduct must be "severe or pervasive enough to create an objectively hostile or abusive work environment" to a reasonable person. In addition, the victim must subjectively perceive the environment as abusive, though the Court did not require that the plaintiff show psychological injury or effects on work performance. Later still, the Court held that, if the offending conduct occurs because of sex, same-sex harassment also is actionable under Title VII (Oncale v. Sundowner Offshore Servs.Inc., 523 U.S. 75 (1998)).

Employer Liability
A dozen years after the Meritor decision, the Court held that an employer could be liable for a supervisor's sexual harassment of an employee even when the employer did not know of the harassment. (See Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Indus. v. Ellerth, 524 U.S. 742 (1998).) Indeed, the two decisions established that a victim of sexual harassment can recover damages from an employer even if no adverse job consequences result from a hostile working environment created by a supervisor. When quid pro quo is involved, a supervisor who conditions job opportunities or benefits on a subordinate's acquiescence to sexual demands is "aided by the agency" relationship with his employer, and the employer will be strictly liable for the resulting harm. (See Faragher, 524 U.S. at 802, and Ellerth, 524 U.S. at 760.) In cases where a hostile working environment is alleged, however, the Court rejected the strict-liability rule, holding that the employer could minimize or eliminate liability by both demonstrating that it exercised reasonable care to prevent and correct the sexual harassment, and also showing that the employee unreasonably failed to avoid or minimize the harm, particularly by not timely using available internal complaint mechanisms (Faragher, 524 U.S. at 805). The cases emphasize the need for employers to distribute their harassment policy to all employees, and for victims to complain about offending circumstances while they are still employed if they hope to collect damages later.

Offensive Words
Isolated instances of touching, crude language, sexual innuendo, or tasteless jokes do not, by themselves, generally establish a hostile work environment under Title VII. In one case, the Ninth Circuit held that a single offensive incident in which a fellow employee touched the plaintiff's breast under her sweater did not rise to the level of actionable harassment (Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000)). In another case, no sexual harassment was found when a female employee's supervisor made the isolated statement, "I hear making love to you is like making love to the Grand Canyon." (Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001).) Similarly, the Seventh Circuit held that two dinner invitations by a supervisor that appeared to be sexual advances were insufficiently severe to create a hostile work environment (Murray v. Chicago Transit Auth., 252 F.3d 880 (7th Cir. 2001)).

Generally, when the comments at issue are directed at individuals other than the plaintiff, they don't establish a hostile work environment (Koran v. Cal. Youth Auth., 217 F.3d 1104 (9th Cir. 2000)). When sufficiently egregious, however, single incidents may cross the line to liability, particularly when made by a supervisor (Howley v. Town of Stratford, 217 F.3d 141, 148 (2d Cir. 2000)). Likewise, stray remarks that are repeated over a period of years may establish a pattern of continuous pervasive harassment sufficient to create a hostile work environment (Draper v. Coeur Rochester Inc., 147 F.3d 1104 (9th Cir. 1998)). And recently the Ninth Circuit reversed a summary judgment granted to the employer of a man who was subjected to a female coworker's repeated sexual overtures via love letters, verbal comments, and suggestive gestures (EEOC v. Prospect Airport Servs. Inc., 621 F.3d 991 (9th Cir. 2010)).

California's FEHA
The California Fair Employment and Housing Act (FEHA) prohibits harassment on the basis of sex (and other protected categories) when such conduct includes verbal harassment and the use of epithets, derogatory comments, or slurs. (See Cal. Gov. Code § 12940(a), (j).) Though California courts look to federal decisions for guidance in seeking antidiscriminatory objectives, the rights FEHA extends to employees are greater than those Congress has enacted. For example, harassment based on sexual orientation violates California law, but not Title VII. The federal legislation covers employers with at least 15 full- or part-time workers (42 U.S.C. § 2000e(b)), while FEHA generally covers employers of 5 or more. However, California's prohibition against any form of unlawful harassment applies to all employers, regardless of the size of their workforce. (Cal. Gov. Code § 12940(j)(4)(A).)

Further distinguishing state from federal law, California courts have held that an employer is "strictly liable for the harassing conduct of its agents and supervisors." (Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 608 & n. 6 (1989).) Ellerth established that under federal law an employer can reduce or escape liability if it exercises reasonable care to prevent and correct any harassing behavior, and if it can show that the plaintiff failed to avoid harm. But ever since Fisher, California decisions have consistently held that employers are liable--regardless of fault--for the offensive conduct of supervisors whenever a plaintiff establishes an atmosphere of pervasive and severe sexual harassment. (See also Kelly-Zurian v. Wohl Shoe Co., 22 Cal. App. 4th 397 (1994).)

Under Title VII supervisors are wholly immune from liability when making personnel decisions. But under FEHA, they are personally liable for sexual harassment (Reno v. Baird, 18 Cal. 4th 640 (1998)). In fact, in 2001 the California legislature extended individual liability for harassment to all employees. (Cal. Gov. Code Section 12940(j)(3).)

Limited Defenses
Although employers continue to face strict liability in the context of supervisor misconduct, the California Supreme Court has acknowledged a limited defense under the common law doctrine of avoidable consequences when three factors are present:

-- The employer took reasonable steps to prevent and correct workplace sexual harassment;

-- The employee unreasonably failed to use the preventive and corrective measures that the employer provided; and

-- Reasonable use of the employer's procedures would have prevented at least some of the harm that the employee suffered (Dep't of Health Servs. v. Superior Court, 31 Cal. 4th 1026 (2003)).

In California, a pattern of continuous harassment including repeated, prolonged, and intensive inappropriate conduct has been held to establish a hostile work environment (Birchstein v. New United Motor Mfg. Inc., 92 Cal. App. 4th 994 (2001)). Stray remarks coupled with physical threats also are actionable (Sheffield v. L.A. Cnty. Dep't of Soc. Servs., 109 Cal. App. 4th 153 (2003)). In addition, a hostile work environment can develop from an atmosphere of sexual favoritism--even when the inappropriate sexual conduct is not directed at the plaintiff--if sexual favoritism communicates a message that female employees are viewed by management as "sexual playthings." (Miller v. Dep't of Corr., 36 Cal. 4th 446 (2005).)

But liability is not imposed when sexual jokes and banter are not aimed at the plaintiff employee or designed to denigrate a protected group (Lyle v. Warner Bros. Television Prod., 38 Cal. 4th 264 (2006)). Similarly, the court of appeal rejected a hostile work environment claim after recounting the initially friendly banter between the plaintiff and her supervisor and concluding that eleven instances of alleged sexual harassment constituted brief and isolated comments over the course of a two- or three-year period (Haberman v. Cengage Learning Inc., 180 Cal. App. 4th 365, 385 (2009)). Likewise, federal courts have cited Baskerville v. Culligan Int'l Co. (50 F.3d 428, 430 (7th Cir. 1995)) for the proposition that, especially when plaintiffs participate, "occasional vulgar banter, tinged with sexual innuendo of coarse or boorish workers" generally does not create a work environment that a reasonable person would find intolerable. Instead, the conduct must be "hellish." (Perry v. Harris Chernin Inc., 126 F.3d 1010 (7th Cir. 1997).)

Training Required
FEHA obligates firms with 50 or more employees to train supervisors to help prevent sexual harassment, discrimination, and retaliation. The trainers must have specific expertise in the field; and two hours of training must be offered every two years to all California supervisors. (Cal Gov. Code § 12950.1.) But the training does not insulate an employer from liability, nor does a failure to train guarantee that a victim can prove a particular case.

Moreover, employers must give all employees an information sheet defining sexual harassment and stating that it is illegal; describing the internal complaint procedure and the legal remedies available through the Department of Fair Employment and Housing; and giving directions for contacting that department and the Fair Employment and Housing Commission. (Cal. Gov, Code § 12950(b).)

Are We There Yet?
Sexual harassment law has come a long way from its humble beginnings during those historic congressional debates. Evolving standards have helped employers in preventing and defending against sexual harassment, at the same time enabling women to advance in the workforce based on merit. Nonetheless, harassment litigation abounds, and questions of law remain: For example, how much discipline is enough? And at what point does someone who participates in offensive sexual banter lose the right to make a hostile environment claim if the banter becomes increasingly offensive?

In California, some employers question why strict employer liability has not yielded to a more common-sense approach--such as allowing a company with all of the appropriate policies, procedures, and trainings to avoid liability for errant supervisors who have repeatedly been trained and agreed not to engage in harassing conduct. Even with the benefit of a generation of case law, issues of sexual harassment continue to arise, and each case turns on unique facts and circumstances. Though the law has come a long way, the effort to eradicate workplace harassment never ends.

Arthur F. Silbergeld is an employment litigation partner in the Santa Monica office of Bingham McCutchen. Margaret A. DeGooyer is an associate in the firm's San Francisco office.

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