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Sexual
Harassment Case Study
Legal Analysis
Sexual Harassment
Title VII of the Civil Rights Act of 1964 prohibits discrimination
in employment based on sex. 42 U.S.C. § 2000a-2. Title VII provides: “It shall be an unlawful employment practice for any
employer…(1)…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s…sex.” Id. Title VII’s prohibition on discrimination based on sex includes sexual
harassment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).
In Texas, the Texas Commission on Human Rights Act (“TCHRA”),
TEX. LAB. CODE ANN. § 21.001 (Vernon 1996), prohibits discrimination in employment based on sex and other protected
characteristics. “An employer commits an unlawful employment practice if because of …sex…the employer : (1) fails or refuses
to hire an individual, discharges an individual, or discriminates in any manner against an individual in connection with
compensation or the terms, conditions, or privileges of employment….” Id. §21.051 (1). Texas courts have defined sex
discrimination to include sexual harassment. See Mackey v. U.P. Enterprises,
Inc., 935 S.W. 2d 446, 455 (Tex. App.- Tyler
1996, no writ); Vincent v. West Tex. State Univ., 895 S.W. 2d 469, 473 (Tex. App. – Amarillo 1995, no writ);
Syndex Corp. v. Dean, 820 S.W. 2d 869 (Tex. App. – Austin 1991). The TCHRA is intended to effectuate the purposes of Title VII. Therefore,
Texas courts look to the federal courts’ interpretation of Title VII for guidance in interpreting the TCHRA. See TEX. LAB.
CODE ANN. § 21.001(1) (Vernon 1996); Schroeder v. Tex. Iron Works,
Inc., 813 S.W. 2d 483, 485 (Tex. 1991); Greathouse v.
Alvin Indep. School Dist., 17 S.W. 3d 419, 423 (Tex. App. – Houston 2000).
The Fifth Circuit has set forth five elements necessary to
establish a prima facie case of sexual harassment in the work place:
(1) The employee belongs to a protective group i.e. a simple
stipulation that the employee is a man or a woman;
(2) The employee was subject to unwelcome sexual harassment,
i.e. sexual advances, request for sexual favors, and other verbal or physical contact of a sexual nature that is unwelcome
in the sense that it is unsolicited or unincited and is undesirable or offensive to the employee;
(3) The harassment complained of was based upon sex, i.e. but for the fact of her sex the plaintiff would not have been the
object of harassment;
(4) The harassment complained of affected a “term, condition,
or privilege of employment,” i.e. the sexual harassment must be sufficiently severe or pervasive so as to alter the conditions
of employment and create an abusive working environment. In the type of harassment that involves the conditioning of concrete
employment benefits on sexual favors, i.e. quid pro quo, the employee must show that the employer required sexual
considerations from the employee in return for job benefits.
(5) Respondeat superior, i.e. that the employer knew or
should’ve known about the harassment in question and failed to take prompt remedial action.
Dodge v. Hunt Petroleum
Corp., 2001 Tex. App. LEXIS 5975.
To prevail under this claim, the plaintiff must meet the Fifth
Circuit’s five requirements as set out above. The first three requirements are rather simple to establish: Jane Doe is a woman,
she has been subjected to unwanted verbal and physical contact of a sexual nature, and this contact would not have happened if
she was not a woman. The most difficult element of the five is the fourth, which essentially establishes that the verbal or
physical contact created a hostile work environment. Recently, in Toennies v. Quantum Chemical, the Fifth Circuit held that
under a Title VII claim, that discrimination in a protected area only needs to be a motivating factor rather than the sole
cause for the discrimination. Toennies V. Quantum, 998 S.W.2d 374 (Tex. App. – Houston [1st Dist.] 1999). Thus, if Jane Doe’s
sex was a motivating factor for her the harassment, it would be enough to sustain a charge for discrimination.
A sexual harassment claim may be premised on either quid pro
quo or on the claim of a hostile work environment. A sexually hostile work environment exists when unwelcome sexual advances,
requests for sexual favors, sexually abusive or vulgar language, or other verbal, visual, or physical conduct unreasonably
interfere with an individual’s work performance or create an intimidating, hostile, or offensive working environment.
Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986). A hostile environment claim may be based on remarks, innuendo, physical
acts, or other job conditions. Id. at 65. The U.S. Supreme Court set the standard for hostile work environment in
Harris v
. Forklift Systems. Discrimination in this form occurs “when the workplace is permeated with discriminatory intimidation,
ridicule, and insult that it is sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.” Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). The Supreme Court has recently
reaffirmed the “severe and pervasive test” in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington
Industries v. Ellerth, 524 U.S. 742 (1998). It is no longer enough for an employer to take corrective action; employers
now have an affirmative duty to prevent sexual harassment by supervisors. Once an employee has established actionable
discrimination involving no “tangible employment action,” an employer can only escape liability if it took reasonable
care to prevent and correct any sexually harassing behavior. Faragher, 118 S. Ct. at 2293.
Whether an environment is hostile or abusive can be determined
only by looking at the totality of the circumstances. Harris, 510 U.S. at 23. This includes: (1) the frequency of the
discriminatory conduct, (2) its severity, (3) whether the conduct was physically threatening or humiliating or merely
offensive, and (4) whether it reasonably interfered with the employee’s work performance. Id. at 22. Harris also requires
looking at all the incidents of alleged harassment and not conducting separate analyses based on the identity of each harasser. Jane Doe was subjected to unwanted and offensive touching from the very first day of her employment. This touching continued for two months, even after a sexual harassment policy was distributed to her harasser informing him of the reprehensible nature of his behavior. This conduct physically threatened Jane Doe on a daily basis; she never knew when it would occur, as is evidenced by the harasser sneaking up behind her when she was in a dimly lit supply closet. Obviously, this unwanted and offensive contact interfered with Jane Doe’s work performance; she could not do her job effectively while constantly watching out for her harasser around every corner. As a result, the harasser’s conduct created a hostile and abusive working environment for Jane Doe.
In a recent opinion issued by a unanimous court in
Oncale v.
Sundowner Offhore Servs., Inc., 523 U.S. 75 (1998) Justice Scalia wrote:
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 the words used or the acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and
juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable
person in the plaintiff’s position would find severely hostile or abusive. Oncale, 118 S. Ct. at 1003. A hostile work environment plaintiff
must still establish that her environment was objectively hostile, and also that she subjectively perceived the environment to
be hostile. Harris, 510 U.S. at 21; Faragher, 118 S. Ct. at 2283. A discriminatorily abusive work environment, even one that
does not affect the employee’s psychological well-bring, can and often will detract from employee’s job performance,
discourage employees from remaining on the job, or keep them from advancing in their careers. Id. Although the statute
mentions specific employment decisions with immediate consequences, the scope of the prohibition “is not limited to
‘economic’ or ‘tangible’ discrimination.” Harris, 510 U.S. at 21. Traditionally, allegations of sexual harassment have been
scrutinized under a “reasonable person” standard. Rabidue v. Osceola Ref.
Co., 805 F. 2d 611 (6th Cir. 1986), cert. Denied,
481 U.S. 1041 (1987). The Fifth Circuit applies this traditional reasonable person test.
Shepherd v. Comptroller of Pub.
Accounts, 168 F. 3d 871, 874 (5th Cir. 1999)(stating that “to be actionable, the challenged conduct must be…objectively
offensive, meaning that a reasonable person would find it hostile and abusive…”). No reasonable person would agree to being
subjected to the type of unwanted and offensive sexual touching that Jane Doe was subjected to by her harasser throughout
the first months of her employment; clearly his conduct was offensive.
In Faragher and Burlington Industries the Supreme Court signaled a
shift from the use of the terms “hostile work environment” and “quid pro quo” in the employment liability context. Burlington
Indus., Inc., 118 S. Ct. at 2265. Although these constructs are still relevant to the “threshold questions whether a plaintiff
can prove discrimination in violation of Title VII,” Id. at 2265, once a plaintiff has established actionable discrimination,
the inquiry turns on whether a supervisor’s harassment culminated in a “tangible employment action,” such as a “discharge,
demotion, or undesirable reassignment.” Faragher, 118 S. Ct. at 2293. If a plaintiff can prove a tangible employment action,
liability is automatic; if however, there was no tangible employment action, employers have an affirmative defense to
liability. Burlington Indus., Inc., 118 S. Ct. at 2270. This defense has two elements: (a) that an 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. Faragher, 524 U.S. at 807.
The standard for constructive discharge is whether a reasonable
person in he shoes would have felt compelled to resign. Landgraf v. USI Film Prods, 968 F.2d 427, 429 (5th Cir. 1992). The
Fifth Circuit applies this test to determine whether an employee’s working conditions were sufficiently intolerable to support
a constructive discharge claim. Brown v. Bunge Corp., 207 F.3d 1023, 1027 (5th Cir. 1992). The reasonable person test
requires the court to consider: (1) whether working conditions were, in fact, in tolerable, and (2) whether the employee’s
resignation was an objectively reasonable response to his or her working conditions.
Ugalde v. W.A. McKenzie Asphalt Co.,
990 F.2d 239 (5th Cir. 1993). Jane Doe clearly is able to make an argument that a reasonable person in her shoes would have
chosen to seek employment elsewhere rather than face the continued harassment by her harasser and be ignored or treated with
contempt by the other employees and supervisors as has been documented. In order to prove intolerable working conditions
sufficient to support a constructive discharge claim, the plaintiff must prove both an unlawful predicate act (i.e.
discrimination or retaliation in violation of Title VII or the TCHRA) and aggravating circumstances. Brown v. Kinney Shoe
Corp., 237 F. 3d 556 (5th Cir. 2001). One way to establish aggravating circumstances is that the employer created or
allowed the creation of an atmosphere of harassment or hostility that rendered working conditions intolerable. See
Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992). In this instance, in addition to the unwanted and
offensive touching, Jane Doe was also singled out and isolated in the workplace. She was ignored by other faculty and
co-workers, which, in a learning environment is not only detrimental to her future, but also can be seen as extremely
hostile. Additionally, she was reprimanded when other employees were not for the same behaviors, was subjected to
different requirements than the other employees, and was not provided with the same vital information as everyone else.
All of these factors contributed to making the work environment hostile and created an atmosphere of harassment.
Also presented here is the issue of respondeat superior.
A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.
Restatement (Second) of Agency § 219 (1); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Although such torts
generally may be either negligent or intentional, sexual harassment under Title VII presupposes intentional conduct. An
intentional tort is within the scope of employment when actuated, at least in part, by a purpose to serve the employer. Id.
However, scope of employment is not the only basis for employer liability under agency principles. An employer is subject to
liability for the torts of its employees acting outside of the scope of their employment when the employer itself was
negligent or reckless. An employer is negligent, and therefore subject to liability, if it knew or should have known about
sexual harassment and failed to stop it. Negligence sets a minimum standard for Title VII liability, but Ellerth seeks to
invoke the more stringent standard of vicarious liability. An employer is vicariously liable for sexual harassment by an
employee who uses apparent authority or who was aided in the accomplishing of the tort by the existence of the agency
relationship. Id. An employer is also subject to vicarious liability for an actionable hostile environment created by a
supervisor with immediate (or successively higher) authority over the employee. Id. When no tangible employment action
is taken, a defending employer may raise the affirmative defense to liability or damages. This defense comprises of two
elements: (a) that an 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. Id. After Jane Doe reported the actions, a supervisor circulated a
sexual harassment policy. These actions did not stop the sexual harassment of Jane Doe, as she was subjected to his
offensive touching again almost two weeks later. Almost a month later, her company provided a sexual harassment seminar,
providing instruction on sexual harassment in the work place and the available method of reporting such occurrences.
This too, did not stop the harassing atmosphere. A remedial action that effectively stops the harassment will be deemed
adequate as a matter of law. Id. (citing Knabe v. Boury
Corp., 114 F.3d 407, 412 n.8 (3rd Cir. 1997)). In this instance,
these remedial actions did nothing to deter the harassment experienced by Jane Doe. Here, Jane Doe took advantage of
the preventive opportunities provided by the employer; she reported her claim and attempted to meet with her harasser
to discuss what was occurring in the work-place. No other preventative or corrective opportunities were offered to her.
Thus, the employer, can be held vicariously liable for the actions of their employee Jane Doe’s harasser.
Retaliation
A Plaintiff establishes a prima facie case of retaliation by showing: (1) that she has engaged in activity protected by Title VII or the ADEA; (2) that an adverse employment action occurred; and (3) that there was a causal connection between the participation in the protected activity and the adverse employment decision.
Jones v. Flagship Int’l, 793 F.2d 714, 724 (5th Cir. 1986). Here, Jane Doe reported the sexual harassment by Her harasser, which would satisfy the first requirement. Title VII was designed to address ultimate employment decisions, not every decision by employers that might have some tangential effect on those ultimate decisions.
Dollis v. Rubin, 77 F. 3d 777, 781-82 (5th Cir. 1995)(citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) (noting that Title VII cases have focused upon ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating). Essentially “but for” causation is required (but for the reporting of the sexual harassment the adverse employment action would not have occurred). Clearly, “but for” Jane Doe reporting her harasser’s behavior she would not have been effectively frozen out of the work place or constructively terminated.
Once the prima facie case is established, the burden falls on the defendant to produce some non-discriminatory reason for the action. Once this occurs, the burden again falls on the plaintiff to show that the reasons given were a pretext for retaliation.
Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992). Here again the fact that the staff is now ignoring Jane Doe or, in the case of one supervisor, treating her with hostility to demonstrates the retaliation.
To seek punitive damages for retaliation, malice would be required. In this case, malice is equated with the intent to harm. Clearly, the actions taken by her harasser to prevent her from obtaining employment elsewhere and in advancing in her career evidence an “intent to harm.”
Tort Claims
Assault, Battery, and Intentional Infliction of Emotional Distress
Jane Doe was put in imminent apprehension of physical and offensive touching by her harasser despite his being made aware of the known offensiveness and undesirability of the contact and of Jane Doe being in fear of the contact. Her harasser repeatedly intended to and did touch the body of the Jane Doe on multiple occasions despite being made aware and having full knowledge of the known offensiveness and undesirability of such contact. It is clear that he committed both the intentional torts of assault and battery against Jane Doe.
An employee may recover damages for intentional infliction of emotional distress in an employment context as long as the employee establishes elements of the cause of action.
Wornick Co. v. Casas, 856 S.W. 2d 732, 734 (Tex. 1993). To recover damages for intentional infliction of emotional distress, a plaintiff must prove: (1) that the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W. 2d 62, 63 (Tex. 1998). To be extreme and outrageous, conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
Twyman v. Twyman, 855 S.W. 2d 619, 621 (Tex. 1993). In the employment context, some courts have held that the plaintiff’s status as an employee should entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if he were a stranger. Texas courts gave held that a claim for intentional infliction of emotional distress does not lie for ordinary employment disputes. Thus, to establish a cause of action for intentional infliction of emotional distress in the workplace, an employer must prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct.
Ramirez v. Allright Parking El Paso, Inc., 970 F. 2d 1372, 1376 (5th Cir. 1992). Upon examining Her harasser’s conduct as a whole, it is difficult to dispute its extreme and outrageous nature. His behavior is clearly outside the realm of an ordinary employment dispute; no employee should be subjected to the repeated unwanted and offensive sexual contact by their supervisor.
Damages
The Texas Labor Code §21.2585 provides for recovery by Jane Doe for the sexual harassment and retaliation she has experienced. It allows for the recovery of compensatory damages including future pecuniary loss, emotional pain and suffering and mental anguish. Additionally it provides for punitive damages if it is shown that the harasser or their employer acted with malice or reckless indifference to Jane Doe’s state protected rights. Finally, §21.259 allows for Jane Doe to recover reasonable attorneys’ fees.
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