The Supreme Court might have answered with greater clarity some of the legal questions raised about sexual harassment issues by Harris v. Forklift Systems, Inc., but the practical impact of its decision is clear as a bell. More sexual harassment suits will be filed, more will make it to trial and employers will avoid greater liability only by paying strict and well documented attention to how they investigate and remedy the complaint that gave rise to the suit. A close examination of the legal and practical ramifications of Harris is a necessary first step towards that end.
The Facts in Harris
Teresa Harris was a managerial employee at Forklift Systems. She alleged that a hostile work environment prevailed at Forklift Systems because of the conduct of the Company President, Charles Hardy, and that she quit her job to get out of an unbearable situation.
The findings and recommendations of the federal magistrate before whom the case was tried, which were adopted by the trial court, suggest that Hardy was a male chauvinist and a boorish jokester. Although Harris and her husband had a social relationship with Hardy and his wife, and Harris' husband was a vendor to Hardy, that did not stop Hardy from displaying this dark aspect of his character to Harris, as well as other female employees.
For example, Hardy asked Harris, a manager, to serve coffee at meetings of the other managers, although he never asked the male managers to do so; was wont to reply "you're a woman, what do you know" to Harris' comments in various situations; and referred to her once as "a dumb ass woman." His "jokes" took the form of requests to his female employees to retrieve coins from his front pockets; comments and sexual innuendoes about their attire when they responded to requests to pick up objects he had thrown on the ground; and a suggestion on one occasion in front of other employees that he and Harris go to a hotel to negotiate her raise. Although Harris was disturbed by this, she admittedly knew that the last comment at least was intended as a joke and took it as such.
Harris accepted the situation without complaint for almost two years, although she was sufficiently upset by her boss's behavior to begin drinking heavily. Finally, she complained to Hardy about his behavior in a meeting that she secretly taped. During the meeting, it became evident that Hardy had not previously known she was offended by his conduct, and he apologized and promised it would stop. Less than two weeks later, however, he was at it again, suggesting that Harris must have promised a new account "some 'bugger'" in order to get his business. Harris quit a few weeks later. The magistrate concluded that, while this was "a close case," Hardy's comments "cannot be characterized as much more than annoying and insensitive, inane and adolescent," and that while some of Hardy's inappropriate sexual comments. . .offended plaintiff, and would offend the "reasonable woman," they were [not] so severe as to be expected to seriously affect plaintiff's psychological well-being. A reasonable woman manager under like circumstances would have been offended by Hardy, but his conduct would not have risen to the level of interfering with that person's work performance.
The magistrate also did not believe that Harris was "subjectively so offended that she suffered injury, despite her testimony to the contrary." Harris admittedly loved her job, enjoyed a social relationship with Hardy and his wife, and often joined in cursing, joking and beer drinking with Hardy and her coworkers. Because of this, the magistrate concluded that "although Hardy may at times have genuinely offended plaintiff, I do not believe that he created a working environment so poisoned as to be intimidating or abusive" to her.
The U.S. Court of Appeals for the Sixth Circuit, which previously had similarly focused on the effect on the plaintiff's psychological well-being as an essential aspect of a sex harassment claim, affirmed in a brief and unpublished decision. The Supreme Court agreed to hear the case in order to resolve a conflict among the circuits as to whether a plaintiff is required to prove psychological harm in a hostile work environment case. Concluding that there is no such requirement, Justice O'Connor did not find this to be even a "close" question. As she put it, "Title VII comes into play before the harassing conduct leads to a nervous breakdown." Under the standards laid out by Justice O'Connor, the elements of a hostile work environment case are conduct which (1) is "severe or pervasive enough to create. . .an environment that a reasonable person would find hostile or abusive," and (2) also is subjectively perceived by the alleged victim to be abusive. While proof of psychological harm may be relevant to a determination of whether the conduct meets this standard, it is not necessarily required. Rather, all of the circumstances must be reviewed, including 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." All of these factors are relevant, but none is a "required" element of the claim.
Justice Ginsburg, in a separate concurring opinion, further pointed out that proof of a tangible decline in productivity is not required to establish unreasonable interference with work performance. Since the lower court's requirement of a showing of psychological harm to Harris might have influenced its ultimate decision, the case was reversed for further proceedings.
Even Justice O'Connor conceded that the Harris opinion does not provide a "mathematically precise test " for evaluating hostile work environment cases. In fact, Harris may well have raised more questions than it answers. As Justice Scalia pointed out, while the opinion provides a nonexclusive list of five factors that are relevant to a determination of whether harassment was sufficiently "abusive," it "neither says how much of each is necessary (an impossible task) nor identifies any single factor as determinative." Rather, said Justice Scalia, "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." Since even well-guided juries can come up with outrageous damage awards that are reversed on appeal, the possibility of a jury that is provided with almost no parameters to limit its overly generous tendencies causes considerable consternation among employers.
Remaining Questions
The consternation is increased by a review of other important sexual harassment issues on which the Supreme Court has provided little guidance. For example, some courts have held that the question of "abusiveness" should be measured from the perspective of a "reasonable woman," as opposed to a "reasonable person," in hostile work environment cases. In Harris, Justice O'Connor used "reasonable person" terminology, but the import of this is far from clear. Has the Supreme Court now adopted the "reasonable person" standard? Or, since this was the terminology used by the court below, was the Court merely echoing, without intending to adopt, that standard?
The Issue of "Welcomeness"
Another important question is whether there may be some burden upon the plaintiff to make known to the offender or the company her opposition to the harassive conduct--i.e., that the conduct is unwelcome. Although the Supreme Court previously made it clear in Meritor Savings Bank v. Vinson that proof that sexual conduct was unwelcome is an essential element in any sexual harassment case, it also held that conduct may be "unwelcome" even when one has acquiesced in it. Accordingly, someone who has "put up with" or even "gone along with" sexual harassment might still have a claim.
If a couple has previously had a consensual relationship, however, the EEOC Guidelines on Sex Harassment provide that a party must give notice to the other that the affair is "off," and that further overtures will be unwelcome, before basing a sex harassment claim on such overtures. Query: Should there be a similar requirement in any situation where there has been no evidence of injury or harm to the employee that would have given the employer reason to know of her opposition to the conduct in question? Otherwise, it is entirely possible that, after Harris, "the tough woman who grins and bears it" without complaint may still have a hostile work environment claim. In Harris, the plaintiff had informed the harasser in no uncertain terms that she wanted his misconduct to stop, but it is unclear whether the Court's decision would have been the same absent that fact. If plaintiffs are not under some burden to make known their opposition to the allegedly harassive conduct, employers may be blindsided by lawsuits from individuals who not only never suffered any harm or negative effect on work performance flowing from the alleged sexual harassment, but also never even complained about the harassment prior to quitting their job. Although employers generally are not held responsible for harassment by coworkers or outsiders unless they knew or had reason to know that the harassment was occurring, liability for a supervisor-perpetrated hostile work environment is governed by the traditional standards of agency.
Constructive Discharge Issues
Yet another important and unresolved issue is the standard to be applied in constructive discharge cases. Some courts are requiring that the employee who claims "constructive discharge" show there was a deliberate effort to make her work conditions intolerable, while others apply a lesser standard. If an employer loses under the Harris standards on the issue of whether there was a hostile work environment, can he still prevail on the issue of whether the employee was constructively discharged? In other words, can a work environment be sufficiently "abusive" to constitute a hostile work environment under Harris, without also justifying the employee in quitting her job?
Practical Impact
These important but sticky legal questions remain to be resolved in other court decisions, and likely will be the subject of future appeals to the Supreme Court. The more immediate problem for most employers is how to avoid being a "guinea pig" for these issues. The myriad of factors that Harris dictates must be considered in measuring abusiveness, and the myriad of factual disputes that they will engender, make it easier for the courts to reject motions for summary judgment and instead conclude that there are material factual disputes which require a jury trial. As indicated above, the absence of clear guidelines for the jury will make it easier for the sympathy factor to take over and result in large damage awards for the plaintiff.
Suggestions for Countering the "Sympathy Factor"
The challenge for employers is to make sure they have the evidence to counter the "sympathy factor." Several steps can help. First, make sure that a comprehensive policy against sexual harassment--one which meets all of the standards imposed by the EEOC's Guidelines, including providing several avenues through which the complaint may be brought to the attention of management, is not only in place, but is widely publicized. The plaintiff who has failed to take advantage of such ably-publicized policy will lose a lot of sympathy--particularly if there is evidence that others who followed the policy have been treated well by the company. To enhance the "sympathy-countering" impact of a sex harassment policy, employers should mount an aggressive training and sensitivity-raising program for managers and employees on sexual harassment issues.
Second, employers must be aggressive about implementing the policy. It is not enough to simply wait for complaints. Supervisors and managers must be trained to watch for signs of harassment, and take action when they observe it--even if no complaint has been filed. Similarly, the company should respond to rumors of sexual harassment, and even to the "informal" request for "just a little advice" from the employee who does not want to file (and perhaps even threatens to disavow) any complaint of sexual harassment, but feels the "need to unload" on a supervisor about a situation that falls within the definition of harassment. The absence of a formal complaint should not stop the company from investigating the situation insofar as possible, given the level of cooperation of the alleged victim. Once again, evidence that the employer has aggressively responded to complaints will go a long way to allay the sympathy factor. Third, the employer's investigation of a sexual harassment incident must be aggressive, objective and thorough. A good "sniff" test for the adequacy of t he investigation is whether, from the viewpoint of an outsider, it could possibly appear that the employer was just "going through the motions," or had arrived at a decision before the investigation and then proceeded to "lead" each witness towards testimony to substantiate that conclusion. The jury must be shown that a complete and thorough investigation led inescapably to a conclusion that the employer was "squeaky clean" of harassment, or else that any harassment that possibly could have occurred was immediately eliminated and remedied.
This means, of course, that even when the employer's investigation cannot substantiate the claims of the alleged victim, but instead winds up in a "swearing match," the employer should still in most cases take some steps to ensure that, if harassment was occurring, it does not happen again. Obviously, discipline should not be imposed on an alleged harasser against whom nothing was proven. But stern reminders about the sex harassment policy, along with additional training for the work group from which the complaint emanated, may be desirable. Moreover, even where harassment has not been proved (e.g. because of evidence that the harassment was welcome, or other factors), poor supervisory judgment may be established and may be an independent and appropriate basis for corrective action.
Finally, where harassment is proved, strong remedial action must be taken. A "slap on the wrist" will not suffice--the remedial action must be reasonably calculated to end the harassment, and must be of a disciplinary nature.
The employer who shows unequivocal opposition to sexual harassment, along with aggressive steps to publicize the policy and to root out and punish any harassment that occurs, not only is less likely to find itself involved in a harassment case in the first place, but also is far more likely to win the "sympathy" battle against a plaintiff who never filed a complaint or whose complaint was found by the employer to be unfounded. As with most cases, sex harassment cases will rise and fall on whose facts create the best image before the jury.