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Article Excerpt
"Thoughts without content are empty, intuitions without concepts are blind." (1)
I. INTRODUCTION
Sexual harassment law works to protect employees from wrongful behavior. (2) When that protection fails, or, at a minimum, becomes conflicted when employee perception. (3) motivates the dispute, the efficacy of the law becomes questionable. The questionable character of sexual harassment law in employee perception cases comes on the heels of several Supreme Court decisions beginning in 1998 when it decided Burlington Industries, Inc. v. Ellerth (4) and Faragher v. City of Boca Raton, (5) and continuing to the summer of 2004, when it decided Pennsylvania State Police v. Suders. (6)
The Ellerth and Faragher decisions set forth an entirely new matrix for determining sexual harassment liability. In the first section of the matrix, a court determines whether a supervisor's or manager's behavior led to an employee suffering a tangible adverse employment action. (7) If the court finds in the employee's favor, the employer suffers strict liability. (8)
In the second section of the matrix, if there is no tangible adverse employment action, the court must determine whether the employer is eligible for an affirmative defense. (9) The employer can avoid liability entirely if (1) the employer promulgated an effective sexual harassment policy/complaint system and (2) the allegedly harassed employee failed to take advantage of the system in place. (10) The imposition of strict liability punishes employers who do not control how their supervisors and managers treat employees. (11) The affirmative defense releases employers who control the workplace by preventing and correcting improper employee treatment. (12) The combination of how the Court imposes strict liability and yet offers an affirmative defense relies entirely on the employer's behavior. Simply put, if the employer behaves "badly" by imposing a tangible adverse employment action, there is strict liability. (13) If the employer behaves "well," that is, by preventing and correcting wrongful behavior, there is no liability at all. (14)
The matrix offers predictability, simplicity, and, as a result, an incentive for employers to behave "well." (15) The court can often determine as a matter of law whether the employee suffered a tangible action and/or whether the employer sufficiently prevented and corrected improper behavior. (16) Such court determinations fulfill the predictability and practicability components of the matrix. In certain situations, however, courts must analyze employer behavior through the eyes of the employee. (17) Two areas in particular within the Ellerth/Faragher matrix do not focus on employer behavior but must rely on employee perception. (18)
When using the first section of the matrix, imposing strict liability is problematic when the aggrieved employee experiences constructive discharge. (19) The employer has constructively discharged the employee when an employer deliberately makes an employee's working conditions so intolerable that the employee must quit. (20) The doctrine of constructive discharge originated in cases under the National Labor Relations Act (NLRA) which expressly forbids unfair labor practices. (21)
The Suders decision relates to the first part of the matrix, because the Court addressed whether constructive discharge can constitute a tangible adverse employment action. (22) This recent decision both assists in the analysis of constructive discharge cases in the context of employee perception and, ironically, confuses the issue further. The assistance comes in the holding which states that constructive discharge can be a tangible adverse employment action. (23) The confusion comes in the requirement that an "official act" precipitate the constructive discharge and that the harassment be "worse case," which the Court defined as "harassment ratcheted up to the breaking point." (24)
Employee perception cases are not limited to constructive discharge, however. When using the second section of the matrix that provides the affirmative defense, employee perception continues to operate in conflict. When the employee fails to come forward in the belief that he or she will suffer retaliation, the matrix is unclear as to whether liability exists. (25) In both fear of retaliation and constructive discharges cases, employer behavior does not drive analysis based upon the matrix. (26) The matrix accordingly weakens or even fails because it no longer provides a clear resolution.
This article investigates how the Ellerth/Faragher matrix, which offers clear standards for employer liability, results in an evaluative gap when the basis of a claim involves the aggrieved employee's perceptions. In exploring this gap, in Part II, we give context to the history of sexual harassment law culminating in the Ellerth and Faragher matrix. In Part III, we examine how the precedent that relies on an analysis of employer behavior under the Ellerth/Faragher matrix may negatively impact the clear resolution of employee perception-based claims, namely constructive discharge claims (as with the Suders case), and fear of retaliation claims. We finish in Part IV by exploring the strengths and weaknesses of the avenues of analysis available to courts, concluding that the weaknesses override the strengths, and demonstrating how fundamentally problematic the matrix is in cases involving employee perception.
II. THE ELLERTH/FARAGHER MATRIX IN CONTEXT
In Title VII, Congress addressed the specific issue of workplace discrimination. (27) In Griggs v. Duke Power Co., (28) the Supreme Court held that Title VII forbids both practices adopted with a discriminatory motive and also neutral practices that have a discriminatory effect on minorities and women. (29)
Congress augmented the Griggs decision when it passed the Civil Rights Act of 1991 (the Act). (30) The Act provided compensatory and punitive damages for disparate treatment lawsuits brought by private plaintiffs. (31) Responding to Congress's emphasis on employer liability, courts interpreting Title VII have proceeded to motivate employers to curb wrongful behavioral. (32) Courts quickly recognized that "quid pro quo" sexual harassment--demanding sex as a condition for receiving job benefits--violated Title VII. (33) However, recognition of quid pro quo causes of action represented only a small step in the law's evolution.
In Meritor Savings Bank FSP v. Vinson, (34) the Supreme Court specified a new analysis when it used agency principles to develop a vicarious liability standard for harassment. (35) In addition, the Court held that Title VII encompasses "hostile work environment" harassment. (36) Because of the Court's incorporation of vicarious liability in Meritor, lower courts developed differing standards for employer liability based on differing interpretations of agency principles. (37) Inevitably, even courts using similar analyses reached conflicting conclusions. (38)
In Ellerth and Faragher, both decided on the same day, the Supreme Court attempted to resolve some of the post-Meritor disparity over the standard for employer liability. (39) The Court stated that the terms "quid pro quo" and "hostile environment" were not controlling for purposes of determining employer liability. (40) The Court reasoned that the determinative objective question was whether a "tangible employment action" took place. (41) In cases in which there was no tangible employment action, the employer could raise an affirmative defense. (42) However, the defense was unavailable if a tangible employment action occurred. (43)
In Ellerth, the Supreme Court granted review and certified the question of whether an employer is vicariously liable when a supervisor for the company threatens an employee with adverse employment action but does not fulfill those threats. (44) The Supreme Court's decision first dispelled contradictory lower court interpretations of Meritor. (45) As used in Meritor, quid pro quo and hostile work environment established the initial question of whether a plaintiff could prove discrimination in violation of Title VII. (46) The terms "quid pro quo" and "hostile work environment" are useful, the Court noted, only to distinguish between situations in which "threats are carried out and those where they are not or are absent altogether, but beyond this they are of limited utility." (47) "Quid pro quo" and "hostile work environment" do not appear in the text of Title VII and, according to the Court, should not form a standard by which to judge employer liability. (48)
The Court in Meritor, in fact, did not use the terms "quid pro quo" and "hostile work environment" to establish a liability standard. (49) However, lower courts following Meritor began to use the terms to establish a standard by which to hold employers vicariously liable. (50) The Court in Ellerth held that plaintiffs may introduce evidence of quid pro quo or hostile environment, but such evidence may not serve as the actual basis for a claim. (51) Instead, plaintiffs must now prove "that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands [in order to establish] that the employment decision itself constitutes a change in the terms and conditions of employment." (52)
The Court noted that "[e]very Federal Court of Appeals to have considered the question has found vicarious [employer] liability when a discriminatory act results in a tangible employment action." (53) Because a supervisor acts with the authority of the company and "tangible employment actions fall within the special province of the supervisor" subject to possible review by higher level supervisors, employer liability attaches when a tangible employment action is taken by a supervisor against a subordinate. (54) Courts therefore analyze the existence of a tangible employment action by referring to employer behavior. (55)
In the absence of tangible employment action, however, application of the strict liability standard does not occur. (56) When no tangible employment action takes place, the employer may utilize a two-pronged affirmative defense to preclude both liability and damages. (57) In recognition of Title VII's goal of encouraging anti-harassment policies and grievance mechanisms, the affirmative defense consists of the following two elements: "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee reasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." (58)
In Faragher, the Court adopted the same holding as in Ellerth. (59) The Court held that "an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense" which looks at the reasonable care exercised to prevent any sexually harassing behavior as well as the employee's failure to adequately take advantage of preventative or corrective opportunities. (60) The Court in Faragher reiterated Meritor's requirement that general agency principles determine employer liability. (61) Meritor's holding that an employer is not automatically liable for harassment by a supervisor remained intact. Faragher, nonetheless, recognized the tension between the new vicarious liability rule and Meritor. (62) The Faragher Court offered two alternatives to alleviate the tension, "one being to require proof of some affirmative invocation of that authority by the harassing supervisor, the other being to recognize an affirmative defense to liability in some circumstances, even when a supervisor has created the actionable environment." (63) These alternatives are the basis of the matrix.
The first phase in the matrix is to determine whether an employer is subject to strict, vicarious liability for a supervisor's sexual harassment when an employer takes a tangible employment action. (64) When there is no tangible employment action, an employer may use the second phase of the matrix and raise the two-pronged affirmative defense against liability to damages. (65) The first prong addresses "whether the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior." (66) The second prong requires that the "plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." (67) While it appears that the prongs are balanced in that the first focuses on employers and the second on employees, the only significant circuit split arises in the second. (68)
III. ANALYZING EMPLOYEE PERCEPTION CLAIMS UNDER A MATRIX DRIVEN BY EMPLOYER BEHAVIOR
Many of the disputes resolved within the matrix analyze employer behavior--did the employer impose a tangible adverse employment action, prevent the harassment, or correct the harassment? With strict liability in phase one of the matrix and an affirmative defense in phase two, analyzing employer behavior in sexual harassment claims allows for resolution exactly as the Court intended--predictably with punishment for wrongful behavior and a defense for good behavior. (69) Not all cases decided under Ellerth and Faragher, however, fit within an analysis of employer behavior. In two notable exceptions, the court must determine liability from the perspective of the aggrieved employee. First, in phase one of the matrix, a court will occasionally address an employee's claim of constructive discharge when determining whether a tangible adverse employment action took place. (70) Second, in phase two of the matrix where courts apply the affirmative defense, some employees will allege a fear of retaliation. (71) Both types of employee perception claims, constructive discharge and fear of retaliation, do not fit cleanly within the Ellerth/Faragher...
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