sexual harassment as a cause of action

Sexual Harassment as a Cause of Action
According to the Equal Employment Opportunity Commission's (EEOC) Employment Guidelines of Discrimination Because of Sex, harassment on the basis of sex may be actionable when "(1) submission to such conduct is made either explicitly 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, 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." 29 C.F.R. § 1604-11(a). 
Thus, sexual harassment may either affect the terms or termination of employment or create a hostile working environment. The latter type, "hostile environment sexual harassment," must be sufficiently pervasive or severe to "alter the conditions of the victim's employment and create abusive working conditions." 
To establish an actionable claim of sexual harassment, five elements must be proved: (1) the employee belongs to a protected group; (2) the employee was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the defendant/employer knew or should have known of the harassment and failed to remedy the problem. (Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57). 
The EEOC regulations, 29 C.F.R. § 1604-11(b), further provide that, "in determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances." Since the totality of the circumstances must be reviewed to determine whether there was actionable sexual harassment, the employee's subjective response to acts of sexual harassment is an essential part of proving a claim.
Workplace harassment, even harassment between men and women, is not automatically discrimination "because of sex," within meaning of Title VII, merely because words used have sexual content or connotations; rather, critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of other sex are not exposed.  (Oncale)
Not all conduct that is offensive can be characterized as harassment in violation of Title VII; rather, it is only when workplace is so permeated with discriminatory intimidation, ridicule and insult, that is, sufficiently severe or pervasive to alter conditions of victim's employment and create abusive working environment, that Title VII is violated.

Faragher v. Boca Ratton
524 US 775, 1998
Issue:  Title VII claim for sexual harassment in employment. 
Holding: (1) Employer is subject to vicarious liability under Title VII to a victimized employee for actionable discrimination caused by a supervisor, but employer may raise an affirmative defense that looks to the reasonableness of employer's conduct in seeking to prevent and correct harassing conduct and to the reasonableness of employee's conduct in seeking to avoid harm, and (2) city was vicariously liable to lifeguard in view of its failure to exercise reasonable care to prevent harassing behavior. 
Hostile Work Environment: In order to be actionable under Title VII, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so; courts must determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including frequency of 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. Antidiscrimination provisions of Title VII do not prohibit genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex; simple teasing, offhand comments, and isolated incidents, unless extremely serious, will not amount to discriminatory changes in the terms and conditions of employment.  In other words, conduct must be extreme to amount to a change in the terms and conditions of employment, within context of antidiscrimination provisions of Title VII.  In this case, the hostile acts included touching, vulgar requests for sexual contact, and simulated acts, but apparently did not include actual sexual intercourse.
Vicarious Liability:  An employer is not automatically liable for the sexual harassment by a supervisor of an employee.  An employer is generally liable when the supervisor conducts the harassment through a misuse of his supervisory role, subject to the affirmative defenses, below.  An employer is generally not liable for the harassment of an employee by another non-supervisory employee/co-worker, on the theory that the harassed employee could simply say “no” without any employment repercussions.
Affirmative Defense (restriction):  Under Title VII, no affirmative defense is available to an employer on an employee's claim of vicarious liability for an actionable hostile environment created by a supervisor when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment (quid pro quo).
Affirmative Defense (Employer):  Employer is subject to vicarious liability to victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over employee.  When no tangible employment action is taken, employer may raise an affirmative defense to liability or damages, subject to proof by preponderance of evidence and comprising two necessary elements: (a) that employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by employer or to avoid harm otherwise.  While proof that an employer has promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law for asserting an affirmative defense to vicarious liability for an actionable hostile environment created by a supervisor, the need for a stated policy suitable to the employment circumstances may appropriately be addressed when litigating that element of the defense. City could not be found to have exercised reasonable care to prevent male supervisors' harassing conduct toward female city lifeguard, as necessary to establish affirmative defense to vicarious liability for supervisors' conduct in Title VII action; city failed entirely to disseminate its policy against sexual harassment among beach employees, its officials made no attempt to keep track of conduct of supervisors in question, and city's sexual harassment policy did not include any assurance that harassing supervisors could be bypassed in registering complaints.
Affirmative Defense (Employee):  Demonstration that an employee failed to use a complaint procedure provided by the employer in response to sexual harassment by a supervisor will normally suffice to satisfy the employer's burden of demonstrating lack of reasonable care by employee to avoid harm, as element of affirmative defense to a vicarious liability claim under Title VII.  While proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense.
Case status:  This case has been declined to be followed in one instance based on state law, declined to be extended by 5 courts, distinguished by fourteen courts, but no negative treatment in the 9th circuit or California state courts.

Must plaintiff notify harasser or “say no”?  
There are conflicts in the law about this. 
The EEOC states that the party charging sexual harassment arising from conduct in which he or she initially participated must clearly and affirmatively notify harasser that he or she is no longer willing participant before Title VII violation will be found. EEOC Dec 84-1 (Nov 28, 1983).  Case law indicates that if employer knew or “should have known” about the harassment that is sufficient for vicarious liability (42 USCA 2000e-2(a)(1) note 464). 
An employee can demonstrate that the employer knew of the harassment by showing that the employee told the employer of the harassment.  However, in at least one case, the supervisor's sexual harassment of employee was unwelcome, for purposes of establishing prima facie case of hostile environment sexual harassment under Title VII, even though employee never explicitly told supervisor that she wanted him to stop harassing her, where employee did not encourage supervisor's sexual advances or sexually-explicit language, employee told supervisor she was not interested when he propositioned her, and employee tried to get away from supervisor when he used sexually-explicit language.  (924 F.Supp 1119, 1996). 
The Faragher court stated that “When a fellow employee harasses, the victim can walk away or tell the offender where to go, but it may be difficult to offer such responses to a supervisor..." (524 US at 803). 
But see Shaw v. AutoZone, where the court found that female employee who quit without reporting store manager's alleged sexual harassment acted precisely in manner that victim of sexual harassment should not act to establish employer's liability in face of defense that she unreasonably failed to take advantage of available preventive or corrective opportunities, where employer adopted sexual harassment policy that established multiple methods for employees to complain of harassment, and she failed to take advantage of any of these mechanisms; she concedes that she never alerted anyone at employer to manager's inappropriate activities, she did not even tell him to stop making offensive comments, and she also ignored employer's three attempts to determine what caused her to quit her job. Subjective fears of confrontation, unpleasantness, or retaliation do not alleviate employee's duty to alert employer to allegedly hostile environment, even though victim of sexual harassment legitimately may feel uncomfortable discussing such harassment with employer, and, thus, employer is not liable to female employee who resigned without first using any of multiple complaint mechanisms provided in its sexual harassment policy, allegedly because she did not feel comfortable enough with anyone at employer to speak with them about her supervisor's alleged offensive sexual conduct toward her.  (180 F.3d 806, 1999). 
The issue of telling someone about the harassment is part of the affirmative defense an employer can raise in that the employee did not take reasonable care to stop the harassment. 

References for Possible Defenses to Sexual Harassment
Plaintiff’s conduct: 145 A.L.R. Fed. 459 (1998)
Plaintiff’s past sexual behavior: 73 ALR Fed 748

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