II. Tangible Employment Action Or Hostile Work Environment?
A. Tangible Employment Action
In cases of sexual harassment by a supervisor and where the employee is affected by a tangible employment action, the employer is vicariously liable for the conduct.
A “tangible employment action” constitutes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at 761. In such a case, the employer is strictly liable for the conduct of its supervisor or agent. Id. at 763; accord Faragher, 524 U.S. at 790.2
B. Hostile Work Environment Sexual Harassment
Where there is no such tangible employment action –- that is, where the employee is still employed with no adverse change in her status –- the employer may still be liable for “hostile work environment sexual harassment,” but only under certain circumstances.
A sexually hostile work environment is one in which “discriminatory intimidation, ridicule, and insult . . . [is] sufficiently severe or pervasive as to alter the conditions of a victim’s employment.” Meritor, 477 U.S. at 67. In Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), the Supreme Court recognized that the determination of what constitutes a sufficiently severe or pervasive work environment “is not, and by its nature cannot be, a mathematically precise test.” Id. at 22. The Court set forth a number of factors that finders of fact should consider in making such a determination:
[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.
Id. at 23. See also, Faragher at 785.
In determining whether allegedly harassing conduct is sufficiently hostile or unwelcome to alter the terms and conditions of employment, courts apply a “reasonable person” standard. Harris, 510 U.S. at 21. In order to find the employer liable for the conduct in question, a court must find both that the conduct was in fact subjectively hostile or abusive to the plaintiff, and that it would have been objectively hostile or abusive to a reasonable person. Id. at 22.
The “severe or pervasive” standard is intended to ensure that viable sexual harassment claims arise only as a result of extreme conduct. Faragher, 524 U.S. at 788. Under this standard, occasional or sporadic teasing, gender-based jokes, offhand comments and other such behavior do not amount to actionable sexual harassment. Id. On the other hand, although harassing conduct is actionable only if it is severe or pervasive enough to constructively alter the conditions of the victim’s employment, it need not result in “concrete psychological harm.” Harris, 510 U.S. at 22. The prohibitions of Title VII “come into play before the harassing conduct leads to a nervous breakdown.” Id. at 21. 3
Once a court has determined that workplace conduct is sufficiently severe or pervasive to constitute a hostile work environment, it must decide whether the employer is to be held vicariously liable for the actions of the employee or employees who engaged in the conduct. In Ellerth and Faragher, the Supreme Court held 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.” Ellerth, 524 U.S at 765. However, in light of Title VII’s stated goals of “promot[ing] conciliation rather than litigation” and “encouraging employees to report harassing conduct before it becomes severe or pervasive,” the Court declined to impose “automatic liability” for all occurrences of such harassment which did not lead to a tangible employment action. Id. at 764. In hostile work environment cases where no tangible employment action has occurred, the employer may raise an affirmative defense that will avoid liability. The Court explained in Faragher, 524 U.S. at 807:
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.
An employer can satisfy the first element of the two-pronged affirmative defense by showing that it maintained and implemented an effective mechanism for deterring and remedying workplace discrimination and harassment. At a minimum, this usually means that the employer must 1) have in place and disseminate a sexual harassment policy that 2) provides a reasonable complaint procedure (i.e., accessible and understandable to employees, and allowing them to report harassing conduct to someone other than the harasser). See id. at 807-08; Ellerth, 524 U.S. at 773-74.
In order to satisfy the second prong of the affirmative defense, the employer must show that the plaintiff failed to proceed with or exhaust the internal processes before taking legal action, and that she did so unreasonably. This means that, in order to hold her employer liable for a sexually hostile work environment, an employee in most circumstances must first file an internal complaint if a reasonable complaint procedure exists, and must do so promptly. See, e.g., Roebuck v. Washington, 408 F.3d 790, (D.C. Cir. 2005) (upholding defense verdict where plaintiff waited seven months to file internal complaint). Although a plaintiff may excuse such a failure by demonstrating she had a “credible fear” that the complaint procedure would have been futile or led to retaliation, a generalized fear of retaliation will not excuse her failure to make use of her employer’s complaint procedure. For a comprehensive explanation of the factors that determine the reasonableness of a victim’s inaction, see Reed v. MBNA Marketing Sys., Inc., 333 F.3d 27, 35-37 (1sht Cir. 2003).
In light of the affirmative defense that the Supreme Court established in Ellerth and Faragher, lawyers representing parties in sexually hostile work environment cases should be sure to carefully examine the employer’s sexual harassment policy and complaint procedure. Where such policies and procedures exist, practitioners advising employees should counsel their clients to use the procedures absent good reason to believe that the doing so would be futile or would leave to adverse consequences.