Roy’s Analysis of Quirky Question # 158, Reporting Harassment to the Harasser
Quirky Question # 158:
Our company has a sexual harassment policy. The policy makes clear that an employee who feels as though he or she has been harassed should report the problematic conduct to our Director of Human Resources. The policy also provides that, if more convenient, or for any other reason, the employee also can report the harassing behaviors to anyone else in management. Essentially, we’ve tried to make it as easy as possible for an employee to report harassment so our company can address the employee’s concerns effectively.
One of our employees recently filed a Charge of Discrimination with the EEOC. She claims that she was sexually harassed by the Director of Business Development, one of our company’s managers, and describes some pretty serious conduct. In her Charge, she contends that she directly confronted this individual and advised him that his behaviors were unwelcome. She also stated in her EEOC Charge that her direct communications with this individual constituted her “report” of sexual harassment to company management.
Surprise, surprise, our Director of Business Development never said anything to anyone else about this harassment “complaint”. Is this legit? Can the sole report of the harassment by the alleged victim of the harassment be made to the harasser?
Roy’s Analysis:
You pose an intriguing question – does it suffice for a harassment victim to “report” the harassment to the harasser or must she also, or alternatively, register her harassment complaint with someone else in management? You may or may not have realized it but your inquiry raises an interesting aspect of the U.S. Supreme Court decisions of Faragher and Ellerth, which I will discuss below.
As you describe, your company has a sexual harassment policy. (Every company should but not every company does.) Further, as you point out, your policy is designed to facilitate the reporting of problematic behaviors. Your employees can report their concerns to the Director of Human Resources or others in management. Of course, this verbiage in your policy is what, at least in part, has caused the problem. Read more
Sexual Harassment and Negligent Hiring, Can Same Conduct Justify Two Claims: Quirky Question # 152
One of our employees complained of sexual harassment. We investigated, though admittedly not as promptly as we should have. We discovered that the harasser had engaged in some seriously problematic conduct. Our investigation also revealed that the harasser had engaged in similar conduct at a prior employer and previously, at our company, with a different employee who had elected not to report.
The victim of the harassment is now threatening to sue us and demanding settlement compensation. Her lawyer suggests that if we do not settle, he will sue us for multiple claims, including both sexual harassment and negligent hiring. (Apparently, his investigation also revealed the past problems.) Is this legit? Can we be sued for multiple claims based on the same conduct?
Sexual Harassment, Quirky Question # 133
Quirky Question # 133:
Our company provides private correctional and detention management to government agencies around the globe. One of our employees, a detentions officer, reported to our Ethics Officer that a co-worker called her work phone and asked her to engage in sexual intercourse and to be his “booty call” or “one night stand.” She refused to file a formal written complaint. Our Ethics Officer spoke with the co-worker, who denied the allegations and stated instead that the complaining employee had sexually harassed him. Given the “he said, she said” nature of the complaints, the Ethics Officer told both employees to keep it professional at work.
A few weeks later, the employee again reported the same harassment to a supervisor. The supervisor said he would speak with the Ethics Officer, but nothing more was done regarding the employee’s complaint. It is undisputed, however, that the co-worker did not bother the employee again following the admonition from the Ethics Officer to both of them to keep it professional.
A few days after this second report of the same incidence, the complaining employee herself was suspended from employment as the subject of a federal investigation involving reports of misconduct including that she had engaged in sex with detainees and brought contraband into the facility. The supervisor to whom the employee had complained the second time conducted the investigation. The investigation concluded with a sustained finding that the complaining employee was observed by Officers and detainees blowing kisses, flirting and rubbing up against detainees. The employee was terminated.
The employee has sued us, claiming that we engaged in unlawful employment practices by failing to take appropriate prompt and remedial action in response to her complaint of harassment and that we retaliated against her for making the complaint by terminating her employment. Should we be concerned about losing this lawsuit?
Sarah’s Analysis:
[Readers: The following analysis was prepared by my colleague Sarah Evans in our Seattle office. If you have any questions or comments, please do not hesitate to contact Sarah. She can be reached at 206.903.2396, or at evans.sarah@dorsey.com. Additional information regarding Sarah is available at: http://www.dorsey.com/evans_sarah/. Regards, Roy]
As many of you who read this question undoubtedly recognized, the facts set forth in this question arise from the Western District of Washington December 10, 2009 decision in Ware v. GEO Group, Inc., 2009 WL 4844672. There, both Plaintiff and Defendant filed motions for summary judgment. As the decision illustrates, if this had been your company, you would have good reason to be concerned about the retaliation claim.
Under the much-discussed “cat’s paw theory,” an employer may be liable for illegal harassment or discrimination if a subordinate’s bias could influence the discharge decision. According to Wikipedia, the term “cat’s paw” derives from “‘The Monkey and the Cat,’ or ‘Le Singe et le Chat,’ a fable written by French poet Jean de La Fontaine, published in La Fontaine’s second compilation of Fables, book IX, No. 17, in 1679. In the story, a monkey convinces an unwitting cat to pull chestnuts from a hot fire. As the cat scoops the chestnuts from the fire one by one, burning his paw in the process, the monkey eagerly gobbles them up, leaving none for the cat. Today, the term “cat’s paw” refers to “one used by another to accomplish his purposes.”
Ware claimed that she was suspended and eventually terminated in retaliation for her complaint of sexual harassment. Ware argued that GEO had failed to articulate a proper, legitimate, reason for its decision to terminate her employment while GEO stated that Ware did not meet her burden to establish a prima facie case of retaliation and that it provided proper grounds for Ware’s termination. A prima facie case of retaliation under Title VII requires a plaintiff to demonstrate that: (1) she engaged in protected opposition to discrimination; (2) she suffered an adverse employment action; and (3) a causal link exists between the two. See Jordan v. Clark, 847 F.2d 1368 (9th Cir. 1988).
Washingtonlaw is substantially the same, requiring a plaintiff show: (1) she was engaged in a statutorily protected activity; (2) defendant discharged plaintiff or took some other adverse employment action against her; and (3) that retaliation was a substantial factor behind the adverse action. See Kahn v. Salerno, 90 Wa. App. 110, 129 (1988). The Court found that Ware was able to show that she: (1) engaged in statutory protected activity when she reported the inappropriate comments made by her co-worker asking her to engage in sexual intercourse and to be his “booty call” or “one night stand;” and (2) that she was discharged.
Two facts weighed against summary judgment in favor of GEO on the causation question relating to Ware’s retaliation claim. The first was a simple timing argument: Ware was suspended from employment only days after her complaint to her supervisor regarding the co-worker’s behavior. Second, and perhaps most important, was the fact that her supervisor conducted the investigation into the charges against Ware relating to the improper behavior as to detainees. This fact was extremely problematic for GEO, even though her supervisor did not initiate the charges against Ware, or make the final termination decision. Because he conducted the investigation with knowledge of Ware’s complaint against her co-worker, the cat’s paw theory applied to impute liability to the actual decision-makers. The Court stated: “The ‘cat’s paw theory’ states that, even if the final decision maker is not knowledgeable of the protected activity, a subordinate’s bias could, in one way or another, influence the ultimate decision to terminate the employee.” See Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (“We hold that if a subordinate, in response to a plaintiff’s protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process.”) The Court ordered that the causation issue proceed to trial.
Ware did not fare so well on her hostile work environment claim. Ware argued that GEO engaged in unlawful employment practices by failing to take “prompt and appropriate remedial action in response to her complaint of sexual harassment and hostile work environment.” To prevail on that claim, Ware was required to show a genuine issue of material fact as to whether a reasonable woman would find the workplace so objectively and subjectively hostile toward women as to create an abusive working environment. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004). An employer is only liable for an employee’s abusive acts if, after the employer learns of the alleged conduct, it fails to take appropriate remedial measures. Ware alleged that GEO did not take appropriate remedial action because her co-worker was not adequately “disciplined” where the Ethics Officer only told both the employees to keep it professional at work.
While Ninth Circuit courts have recognized that a mere oral reprimand is rarely sufficient to deter future harassment, they have recognized that in some instances it is enough. See Intlekofer v. Turnage, 973 F.2d 773, 779-80 (9th Cir. 1992). In this case, the Ethics Officer’s memorandum noted that Ware did not believe it was necessary to file a formal complaint against her co-worker, and that the co-worker alleged that it was Ware who had sexually harassed him. The Court specifically noted, “Given Ware’s reluctance to file a formal complaint and the ‘he said, she said’ nature of the dispute, [the Ethics Officer's] decision to orally reprimand both [employees] was appropriate ‘discipline’ proportionate to the seriousness of the alleged offense.”
Perhaps even more important was the undisputed fact that all harassment stopped after the Ethics Officer reprimanded the employees. Given the effectiveness of the oral reprimand, the Plaintiff’s refusal to file a formal complaint, and the disputed nature of the incident, the Court held that the employer was not required to do more, and granted GEO’s summary judgment motion as to Plaintiff’s hostile work environment claim.
What lessons can an employer learn from this case? First, ensure that any individual who conducts an investigation of employee wrongdoing has no knowledge of any complaints by that employee. In some cases it may be wise to retain an outside, independent investigator to avoid any possibility of the “cat’s paw theory” creating potential employer liability. Second, in certain circumstances an oral reprimand may be sufficient as a matter of law to shield against liability for hostile work environment – assuming it is successful in ending the behavior and the complaining employee is not willing to formally complain about the harassment. In most cases, however, it is wise for the employer to do more than issue an oral reprimand. Finally, it almost always is important for an employer to ensure documentation of any actions taken.
Associational Gender Discrimination, Quirky Question # 118
One of our male employees (call him Mr. X) recently complained that a supervisor at our company was sexually harassing Mr. X’s girlfriend, also one of our employees. We advised him that we would investigate. Apparently, however, our investigation was not moving sufficiently fast for him. When Mr. X encountered the supervisor in routine work settings, he was confrontational and unpleasant. We advised him he needed to tone it down and let our HR Department do its work, but that just seemed to anger him more. The supervisor who had been accused of harassment informed us that he was getting very nervous about Mr. X’s antagonistic conduct. Based on this escalating situation, we terminated Mr. X’s employment.
He now has filed a charge for “associated discrimination” and retaliation. Say what? Can a significant other of our employees claim discrimination because of the way our company allegedly treats their girlfriend?
Roy’s Analysis:
Your question implicates a number of interesting issues. First, are courts recognizing “associational discrimination” claims? Second, have they done so in the context of gender discrimination claims? Third, even if an associational discrimination claim were not recognized, would your employee have any other recourse? Finally, should your company accept otherwise problematic behavior from the employee simply because he has raised discrimination issues with management? Let’s examine each of these issues sequentially.
As I have discussed in other Blog Postings, courts have recognized associational discrimination claims. (For other analyses of this subject, use the “View by Topic” bar and scroll down to Associational Discrimination and Inter-racial Marriage.) Typically, these claims have arisen in the contexts of family relationships (spouses, parents/children, or other familial relationships). They also have generally been limited to contexts involving inter-racial associations, e.g., inter-racial marriage, or close friendships between members of different races.
The fact pattern you described, where one employee believes that his discharge was caused by his objections to the alleged sexual harassment of his girlfriend, also one of your employees, is unusual. Recently, however, the United States District Court for the Eastern District of Pennsylvania, examined a similar factual pattern in the case of Stezzi v. Aramark Sports, LLC, No. 07-5121 (July 30, 2009). In Stezzi, the plaintiff brought claims under both Title VII and the Pennsylvania Human Rights Act, contending that his discharge was caused by his association with his girlfriend/co-worker who allegedly was a victim of sexual harassment. The plaintiff complained to management about the way in which his girlfriend had been treated. Thereafter, he claimed that he too was treated unfairly by the same person who had been harassing his girlfriend.
Stezzi brought claims for associational discrimination and retaliation. These claims were presented to the District Court on summary judgment. As to the associational discrimination claim, the federal court noted that although courts have recognized Title VII claims for associational discrimination, “such claims are typically predicated upon discrimination against a plaintiff because of race.” The court further pointed out that “there is currently no precedential support to extend a Title VII claim to [gender-based claims].” The court observed that the Third Circuit also had rejected an associational discrimination claim based on gender.
While the Stezzi court was unwilling to extend associational discrimination claims to the context of gender based discrimination, the court did not grant the defendant company’s summary judgment motion on the plaintiff’s retaliation claim. This analysis bears upon the third issue referenced above – would your employee have any claims besides his associational discrimination claim? As you noted in your fact description, your male employee reported the alleged sexual harassment of his girlfriend. As you stated, he apparently concluded that the “investigation was not moving sufficiently fast for him.”
(Digressing on that point for a moment, you do need to move expeditiously once you have received a complaint of sexual harassment. Courts have little tolerance for companies that fail to investigate claims of harassment or that fail to take appropriate remedial action when warranted. You do not describe in your question how much time your company took with its investigation, whether you determined that your female employee had, in fact, been harassed, or whether disciplinary action was warranted. But, I emphasize the obvious to state that you do need to be sensitive to the issues surrounding a harassment complaint and the speed with which you initiate and complete your investigation.)
Returning to the issue of retaliation, it is possible that your male employee, while unlikely to persuade a court to recognize an associational discrimination claim based upon his gender, may well have a retaliation claim that could survive a motion for summary judgment. He formally complained about the way a manager was treating one of your female employees and the company terminated his employment soon thereafter.
This leads to the fourth issue presented by your fact pattern – what conduct did your employee engage in that led to his discharge? You suggested that your employee was “confrontational” and “unpleasant” and that when you advised him that he needed to modify his behavior, that only “angered him more.” As you described, the supervisor who allegedly engaged in the initial harassment informed your company that he was becoming nervous about this employee’s behavior. This fact pattern implicates two important issues.
First, simply because there is temporal proximity between a complaint about discrimination and a subsequent discharge does not mean there is a causal relationship between these two events. Your company does not have to accept otherwise unacceptable behavior merely because the employee engaging in the unacceptable conduct has made a claim of discrimination. You will have to demonstrate to the factfinder (whether judge or jury) that your disciplinary actions were based on intervening events, but if you document the problems you are encountering, and counsel the employee regarding the ramifications of continued misconduct, you should not be reticent to discipline your employee (including discharge if necessary), if the problematic behaviors continue. In your fact pattern, it appears that this was your conclusion. Now, you will need to explain that decision persuasively to others.
Second, your observation that the alleged harasser was becoming “nervous” about the reactions and behavior of the employee who complained suggests also raises a red flag. Unfortunately, in contexts like this, there is always an under-current risk of workplace violence. You do not want to ignore this possibility, even if the likelihood is slim. Ensure that you explore the relevant issues so you can realistically evaluate this risk. The bottom line is that absent a judge who is willing to expand the associational discrimination analyses into a new area, you likely need not worry about a claim for gender-based associational discrimination. But, once a formal report of discrimination, including sexual harassment, has been made, the complainant may be able to assert claims of retaliation if he later suffers adverse job consequences. Move cautiously once a formal (or informal) complaint has been made, but don’t be reluctant to take appropriate disciplianary action if intervening events warrant it.
Who’s a Supervisor?, Quirky Question # 102
We’ve tried hard to institute and enforce an effective sexual harassment policy. Nevertheless, we still occasionally receive sexual harassment complaints from some of our employees. Recently, an employee sued us for sexual harassment. She claimed that she reported the harassment to a relatively low level supervisor and that he failed to take any action in response to her complaint. She said the harassment intensified after her report.
We did not even know she complained. The “supervisor” (who does not have any hiring or firing authority) never said anything to anyone, let alone someone in our HR Department. If anyone who truly is in management had been apprised of this problem, we would have investigated and, if appropriate, addressed the issue. Our employee’s attorney claims that the knowledge of our low level supervisor is imputed to the company. Can this be right?
Roy’s Analysis:
The question of who constitutes a supervisor or a manager is an issue the courts have grappled with for many years, without much consensus. The divergence of judicial opinions relating to this issue likely reflects the competing interests at stake. On the one hand, courts want companies to take their obligations to their employees seriously, implementing reasonable measures to eliminate sexual harassment or to comply with other employment obligations, whether based on statute or common law. On the other hand, courts do not want to create an unfair legal standard by imposing liability on employers under federal or state employment statutes or common law theories by holding that knowledge possessed by a very low level supervisor is imputed to the corporation. The direction a particular court leans when balancing these competing interests often determines how low or how high in the management hierarchy a “supervisor’s” knowledge will imputed to the corporation.
As implied above, this issue can arise in a variety of contexts. For example, as in the Quirky Question # 102, the issue of who is a supervisor may be critical when evaluating liability in the sexual harassment context or in addressing other types of discrimination claims. If an individual who engages in the harassing behavior is a high level manager or executive, whose conduct is imputed to the corporation, the company will likely be held liable for this individual’s behavior. Similarly, if an individual to whom a report of harassing conduct is made is a manager or executive and that individual fails to take appropriate action in response (e.g., reporting the claim to HR, or if so empowered, initiating an investigation), the manager’s failure to act can establish liability for the company. But, should the same standard apply when the individual who engages in the harassing conduct or to whom the initial complaint is made is a low level supervisor, without hiring/firing authority or the ability to discipline other employees? In this factual context, should the company be held liable for this individual’s actions or failure to act?
The question of whose knowledge may be attributed to the company arises in contexts besides sexual harassment or other discriminatory conduct. For example, imagine that an applicant had a domestic assault charge brought against him and that this unfortunate circumstance was known to a friend, who held a low level supervisory role at the company where the employee was applying. If the company hired this individual and he later assaulted a co-worker, could the injured employee persuasively argue in a negligent hiring case that the low level supervisor’s knowledge of the domestic should be imputed to the company?
In the recent case of Huston v. The Proctor & Gamble Paper Products Corporation, No. 07-2799 (3d Cir. June 8, 2009), the appellate court affirmed the summary judgment dismissal of the plaintiff’s sexual harassment and retaliation lawsuit. The fundamental issue in the Hutson case was whether the knowledge of two low level supervisory employees, who allegedly were aware of certain harassing conduct directed at Hutson and others, should be imputed to the corporation.
The Hutson facts were relatively simple. Hutson worked in the control room of a P&G plant, monitoring large paper manufacturing machines. Other technicians worked in the control room with her. Hutson claimed that several of her male co-workers engaged in inappropriate conduct constituting sexual harassment, including exposing themselves. As soon as she reported the alleged conduct to a senior level manager and a Human Resources manager, P&G promptly instituted an investigation. Although Hutson’s principal allegations were not corroborated (indeed, they were vehemently denied), P&G still imposed discipline on a number of the technicians working in the control room for other problematic behaviors.
After later being terminated for falsifying data regarding the machines she was charged with monitoring (conduct admitted by Hutson), she claimed that she was a victim of sexual harassment and retaliation. Because two of the other workers in the control room had certain supervisory responsibilities, including reporting on other technicians who submitted falsified data, Hutson contended that the knowledge possessed by these two individuals (prior to Hutson’s formal complaint) should be imputed to the corporate defendant.
Neither the District Court nor the appellate court bought her argument. The Third Circuit took the opportunity to clarify the law of the circuit regarding the question of when and under what circumstances a supervisor’s knowledge should be imputed to the company. The appellate court noted that management level employees have constructive notice of a hostile work environment when “an employee provides management level personnel with enough information to raise a probability of sexual harassment in the mind of a reasonable employer.” (Citations omitted.) The question then was whether the two low level supervisors in the P&G control room, who held the positions of Process Coach and Machine Leader respectively, were management-level employees whose knowledge could be imputed to the defendant.
In resolving this issue, the appellate court looked to agency principles, observing that Congress had specifically directed the courts to consider agency principles when adjudicating Title VII claims. The court then looked to the Restatement (Third) of Agency, which states that an agent’s knowledge is imputed to the corporation if “knowledge of the facts is material to the agent’s duties . . ..” The court summarized the position articulated in the Restatement – “there are two parameters limiting when knowledge of facts known by an agent is imputed to the principal: the agent’s duties to the principal; and the materiality – or significance – of the facts in question to those duties.” (Emphasis in original.) If the supervisor’s duties to the company did not encompass responsibilities for personnel and/or human resources issues, or if the facts demonstrated that the complaint were outside the scope of the supervisor’s duties, the supervisor’s knowledge should not be imputed to the company.
Applying this analytical framework to the sexual harassment claims brought by Hutson, the court stated, “We thus conclude that employee’s knowledge of allegations of co-workers’ sexual harassment may typically be imputed to the employer in two circumstances: first, where the employee is sufficiently senior in the employer’s governing hierarchy, or otherwise [is] in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee’s general managerial duties.” * * * “Second, an employer’s knowledge of sexual harassment will be imputed to the employer where the employee is specifically employed to deal with sexual harassment.” The court pointed to HR representatives, Employee Relations representatives and other personnel department employees as falling into this category.
The Third Circuit stressed that for someone to be legitimately characterized as management whose actions bind the company or whose knowledge may be imputed to the company, the employee must be an employee in the governing body of the entity, “as opposed to merely a supervisory employee in the labor force.” The court further clarified that “mere supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status.”
Based on this analysis, the Third Circuit affirmed the summary judgment dismissal of Hutson’s claims. The appellate court found that the two supervisors who worked with her in the P&G control room did not have sufficiently broad managerial responsibilities to have their knowledge imputed to the corporation. They had no hiring or firing authority and their disciplinary role was extremely limited. Further, since they were not charged with responsibility for personnel issues, Title VII compliance, eradication of sexual harassment, etc., their knowledge could not be imputed to P&G on this basis. Interestingly, the court also found that Hutson’s later report of the harassment to two other management-level employees, one with general duties and one with HR responsibilities, undermined her contention that P&G should be held liable for the prior knowledge allegedly possessed by her co-workers in the control room.
The Hutson case provides instructive guidance to the question you posed. It would appear that the “supervisor” to whom your employee complained of harassment is not sufficiently high in your corporate hierarchy to have his knowledge imputed to the corporation. Moreover, based on the facts you briefly recounted, it would not appear that this supervisor was charged with HR responsibility, including the elimination of sexual harassment from your workplace. Given those facts, which need some further development, I would be reasonably comfortable that your company will not be found to have been put on notice by the complaint made. This conclusion would be bolstered further if your company had a clearly designated Department or individual, who was charged with the responsibility for addressing sexual harassment complaints, information well publicized within your company.
There are at least two other practical implications illustrated by the Hutson case. First, the Third Circuit’s analysis and the decisions from other courts suggest that companies would be prudent to define carefully the appropriate individuals to whom claims of harassment or other types of discrimination should be reported. The more broadly that group is defined, the more problematic. By problematic, I simply mean that to the extent a company expansively defines the group of individuals to whom harassment may be reported, the greater the likelihood a court might conclude (perhaps even quoting from a company handbook) that anybody in management, including low level supervisors, had the responsibility for ensuring the work environment was harassment free. Therefore, I would recommend against including in an employee handbook the suggestion that anyone who experiences harassment can report concerns to any “member of management” or some comparable phrase.
Second, the Third Circuit opinion and other like analyses suggest that a company may wish to consider carefully how titles are used at a company. In short, avoid title inflation. If everyone is a “manager” or a “vice president” of something or other, there is a greater risk that these individuals could be found to be appropriate individuals to whom concerns about the employment environment, whether based on harassment or other issues, should be reported. Particularly where there is a disconnect between the actual responsibilities performed by these individuals and the titles they are given, companies enhance the complaining plaintiff’s arguments on imputation of knowledge by giving too many employees grandiose titles.
Finally, as stated in the introductory observations, there is a divergence of judicial opinion on these issues. If you would like to see a case at the opposite end of the analytical spectrum, take a look at Bryant v. Livigni, 8 I.E.R. Cases (BNA) 1348 (Ill. Ct. App. 1993), a case supporting the maxim that ‘bad facts make bad law.’
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