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Article Excerpt
ABSTRACT
Lower federal courts often fail to provide plaintiffs in sexual harassment cases the relief intended by Title VII of the Civil Rights Act of 1964 and mandated by the Supreme Court when it recognized the cause of action twenty years ago. There is little doubt that sexual harassment in the workplace persists. However, lower courts misapply or ignore Supreme Court reasoning that would result in fairer and more consistent dispositions in hostile work environment sexual harassment cases. This article draws directly on reasoning from the Supreme Court cases to explain the sources of the confusion in the lower courts and offers jury instructions and guidelines to judges that reflect what the Supreme Court intended.
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A female deputy sheriff alleged that, in violation of Title VII of the Civil Rights Act of 1964, she was sexually harassed by another officer in the County Sheriff's Department where they worked. (1) The co-worker's harassing behavior included, among other acts, his comment to the deputy that "you can just walk into the room and I get an erection;" his calling the deputy a "frigid bitch" on two occasions, once when he tried to kiss her after a department Christmas party, and another time when she refused to join him in a hot tub at a hotel where they both were attending a conference; his telling her that "her ass sure does look fine;" and his descriptions to her and others of a golf tournament where the caddies were strippers and they were directed "to place golf balls into their vaginas and to squirt them onto the green." (2)
The federal district court granted summary judgment for the defendants. In 2006, the Court of Appeals for the Eleventh Circuit affirmed the lower court's decision, stating that the conduct was not sufficiently severe or pervasive to constitute actionable sexual harassment. (3)
INTRODUCTION
This brief description of a 2006 disposition represents one of many decisions in which courts have unreasonably ruled that plaintiffs could not establish the existence of a hostile work environment caused by sexual harassment. (4) There are numerous examples of cases in which summary judgments for defendants have been improperly granted or verdicts for plaintiffs have been vacated. (5) There is widespread agreement by scholars that even twenty years after the recognition by the Supreme Court of the cause of action for hostile work environment sexual harassment, there is a failure to provide the relief intended under Title VII and mandated by the Court. (6)
"Sexual harassment in American worklife is [common-place]--[affecting] as [many] as 80 percent of women in certain sectors, according to one study. But most women don't stand a chance of winning a lawsuit." (7) There seems little doubt that sexual harassment in the workplace persists and has measurable and immeasurable impacts on those who are victimized by this form of discrimination and on their employers. (8)
In 1986, the Supreme Court of the United States recognized a cause of action for workers subjected to a hostile work environment created by sexual harassment. (9) It held that such conduct, when objectively severe or pervasive, violates Title VII of the Civil Rights Act of 1964. (10) However, since then, lower courts have not consistently or rationally applied this standard. This is not the result of a failure of the Supreme Court to establish a workable and fair standard, nor is it due to an absence of scholarly or judicial analysis of those standards. Nevertheless, troubling and confusing precedent is created and followed because too often Supreme Court cases are relied on for only the narrowest propositions. Lower courts ignore or dismiss the Supreme Court's reasoning which would provide the necessary guidance to determine whether harassment is severe or pervasive. (11)
To address the problem of unreasonable and unfair dispositions denying plaintiffs relief, some commentators have suggested solutions requiring a change in the law, through legislation, manipulation or abandonment of Supreme Court standards, (12) or use of social science to determine violations of the law. (13) However, the inability of plaintiffs to win lawsuits (14) is not the result of unreasonable legal standards set forth by the Supreme Court; rather, it is the result of a failure to apply those standards. Lower courts have ignored the direction and guidance of the Supreme Court cases which explained the cause of action and detailed how facts are to be evaluated in ruling on claims of hostile work environment sexual harassment. The solution is simple: courts need to apply the Supreme Court cases more consistently, providing a fair and workable approach to the standards for determining whether alleged conduct in sexual harassment cases violates Title VII.
Part I of this article explores the development of the standards for the establishment of a hostile work environment based on sexual harassment, particularly the requirement that the conduct be severe or pervasive. Part II identifies several reasons for the confusing and inconsistent application of this severe or pervasive standard. Part III examines three recently litigated cases to demonstrate how greater reliance on Supreme Court analysis would have resulted in fairer and more reasonable dispositions. Part IV provides a clear and precise approach to the severe or pervasive standard based on an analysis synthesizing the reasoning of the Supreme Court. We suggest the use of this approach as model jury instructions or as guidance for judges when considering motions for summary judgment. The proposed analysis should be applied in evaluating facts and making case analogies, so that more consistent and rational outcomes can be obtained in sexual harassment hostile work environment cases. This article's goal is to offer courts and litigators a practical solution to the challenge of interpreting and applying the rather abstract standards of severe or pervasive. (15) Our analysis would more successfully differentiate "ordinary socializing in the workplace" (16) from "discriminatory intimidation, ridicule, and insult." (17)
PART I
In its decision in Meritor Savings Bank v. Vinson, (18) in 1986, the Supreme Court held that Title VII [of the Civil Rights Act of 1964] (19), which prohibits, inter alia, discrimination based on sex, encompasses a cause of action for sexual harassment resulting in the creation of a hostile or abusive work environment. (20) The statute does not prohibit sexual harassment; rather, it prohibits discrimination "against any individual with respect to his compensation, terms, conditions or privileges of employment ..." (21) The Court stated that sexual harassment is prohibited by Title VII, noting that the statute evinced "a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women' in employment." (22) The Court quoted from Guidelines issued in 1980 by the Equal Employment Opportunity Commission (23) which specified that sexual harassment is a form of sex discrimination prohibited by Title VII. (24) The Court also stated that the EEOC Guidelines drew on a substantial body of lower court opinions which had already ruled that Title VII encompasses claims of a hostile environment based on sexual harassment, just as it recognizes such claims based on racial harassment. (25)
However, the Court stated that "not all workplace conduct that may be described as 'harassment' affects a 'term, condition, or privilege' of employment within the meaning of Title VII." (26) The Court then declared that "[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of the victim's employment and create an abusive working environment.'" (27)
After concluding that the conduct in Meritor was not only pervasive, but "criminal conduct of the most serious nature," and therefore "plainly sufficient to state a claim for 'hostile environment' sexual harassment", (28) the Court provided somewhat limited additional guidance about how courts should determine if conduct was severe or pervasive. (29) Again relying on the EEOC Guidelines, the Court declared that "the trier of fact must determine the existence of sexual harassment in light of the 'record as a whole' and 'the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.'" (30) The Court stated that "'mere utterance of an.... epithet which engenders offensive feelings in an employee' would not affect the conditions of employment to a significant degree to violate Title VII." (31)
Seven years later, in Harris v. Forklift Systems, Inc., (32) the Court again considered this cause of action. The Court affirmed the standard in Meritor, stating: "When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' ... (internal citation omitted) ... that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment', ... (internal citation omitted)... Title VII is violated." (33) In Harris, the Court resolved a conflict among the circuits concerning the necessity for proving psychological harm or actual injury, declaring that it was taking a "middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury." (34) It then refined the standard for establishing a hostile work environment, holding that conduct must be considered both objectively hostile or abusive (if a reasonable person would find it so) and subjectively abusive (as experienced by the victim) to prove that the conduct actually altered the conditions of the victim's employment. (35)
The Court then stated that the objective test is not and cannot be mathematically precise, and affirmed that the totality of circumstances must be considered. (36) The Court declared: "These [circumstances] 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." (37) The Court held that "no single factor is required." (38)
Justice Scalia's concurrence in Harris was prescient. He was concerned that the Court did not create a clear standard. (39) He commented that although the Court listed some factors that contribute to abusiveness, "since it neither says how much of each is necessary (an impossible task) nor identifies any single factor as determinative, it thereby adds little certitude." (40) "As a practical matter, today's holding lets virtually unguided juries decide whether sex-related conduct engaged in (or permitted by) an employer is egregious enough to warrant an award of damages.... Be that as it may, I know of no alternative to the course the Court has taken.... (41)
It would not be until 1998 that the Court again addressed the standards to be applied to a sexual harassment claim under Title VII. In Oncale v Sundowner Offshore Services, Inc., (42) the Court held that there may be a violation of Title VII's prohibition against discrimination because of sex when the harasser and the victim are of the same sex. (43) The Court affirmed its earlier ruling that in order to establish a violation of Title VII, the conduct must be objectively severe or pervasive to alter the conditions of employment. (44)
The Court, in the opinion authored by Justice Scalia, then provided analysis directed at the determination of whether conduct could be considered severe, expanding on the explanation in Harris of what is to be considered when objectively viewing the totality of circumstances. (45) The determination should include careful consideration of the social context in which the behavior occurs,
[because] the real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations and relationships which are not fully captured by a simple recitation of words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing ... and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive. (46)
Also significant in Oncale are the specific references to conduct which could and could not be considered severe. (47) Explicit or implicit proposals of sexual activity could be considered severe; conduct which could be considered severe need not be motivated by sexual desire, but instead could be motivated by general hostility toward the presence of the victim in the workplace based on gender. (48) Conduct will not be considered severe "merely because the words used have sexual content or connotations." (49) The Court affirmed that requiring the conduct to be objectively severe or pervasive would "ensure that courts and juries do not mistake ordinary socializing in the workplace--such as ... intersexual flirtation--for discriminatory 'conditions of employment.'" (50) Justice Scalia explicitly warned against expanding Title VII into "a general civility code." (51)
[T]he statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the "conditions" of the victim's employment. (52)
In Faragher v. City of Boca Raton (53) and Burlington Industries, Inc. v. Ellerth, (54) both decided in 1998, the Court focused on how courts should determine when employers are liable for workplace harassment in violation of Title VII based on acts of supervisors and subordinates. (55) In Faragher, the Court reiterated its commitment to the contours of this cause of action set forth in its precedent, (56) describing these standards as "sufficiently demanding to ensure that Title VII does not become a 'general civility code.'" (57) The Court also offered additional guidance about conduct which could and could not be considered severe: the conduct must be extreme to alter the terms and conditions of employment; (58) "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to [such] changes in the terms and conditions of employment"; (59) proper application of the standards "will filter out complaints...
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