Supreme Court Decisions on Sexual Harassment Offer Options to Employers, Employees

A decade ago, Faragher ---- then a lifeguard with the Florida city of Boca Raton, but now an attorney --- helped lighten the burden of other often-bereft employees when the U.S. Supreme Court, in her name, changed the rules an employer must follow in addressing sexual harassment in the workplace.

At that time, she didn't know she was making history. "No, I had no idea," she said in an interview. "I was elated. I had no idea of the full impact of the case till a while later. It's overwhelming in some ways to have a Supreme Court case named after you. You want it obviously to be one where you agree with, and I do agree with it.''

The Supreme Court decided Faragher v. City of Boca Raton in June of 1998. The justices, in Faragher and a companion case, Burlington Industries v. Ellerth, redrew the rules governing supervisory sexual harassment. The court instituted a legal standard of "vicarious liability," holding company management strictly responsible for the harassing acts of individual supervisors.

"It (the level of harassment) was actually one of the worst I had seen," recalled William Amlong, the Fort Lauderdale attorney who represented Faragher and another lifeguard, Nancy Ewanchew. "It was incredibly gross behavior...absolutely outrageous. And the city refused to do anything about it. "

Prior to the decisions, employers could sometimes divest themselves of blame for the actions of individual supervisors, who could be said to be acting "outside the scope" of their employment. But Faragher and her fellow lifeguard found themselves largely isolated. The abusive supervisors who patrolled the beach constituted the women's interface with the company. The harassers exercised direct control over the women and could harm them emotionally and economically, with the nearest help over a mile from the beach.

"They (immediate supervisors) had control over our schedules," said Faragher. "We were distanced from city hall where we didn't see the parks and recreation manager on a regular basis. I just wanted to make sure it (harassment) didn't happen to other people."

Conversely, city officials argued that they should be held blameless for the actions of a couple of out-of-control line bosses. "The city had a real scorched-earth policy," recalls Amlong. "It was, 'We do things the way we want to. We are going to ignore these women. You can't hold us responsible.' "

But the justices did hold the city --- and employers at large --- responsible. Offending employers can now be found in direct violation of the law for the acts of individual supervisors, if those acts resulted in a tangible job detriment, such as termination or demotion. Where there was no specific action taken against the employee, employers were allowed two affirmative defenses. They can show they moved quickly and effectively to halt the harassment, or argue that a complaining employee "unreasonably failed" to take advantage of the employer's protection, usually in accordance with a clearly drawn anti-harassment policy.

"It was a remarkable result," observed Ernest Rossiello, the Chicago attorney who represented Kimberly Ellerth in the companion case to Faragher. "We didn't even, in brief, contemplate the result.

"In the past, a lot of judges said the employer had to know, had to have actual knowledge or constructive knowledge. Also, the concept of tangible employment action was new, the vicarious liability theory was all new. But the result was very, very good."

The new doctrine was an extension of the basic principle of agency. Generally, according to Amlong, a master (the employer) is not responsible for the acts of the servant/supervisor unless empowered by the employer. He noted that the Faragher case simply extended the agency aspects of the Meritor Bank case in 1986, one of the earliest Supreme Court cases to recognize the problem of sexual harassment in the workplace. "I thought it was a very straightforward extension of Meritor, which had said you would have to look to agency, but (Faragher/Ellerth) tempered the agency concept somewhat."

On the one hand, the doctrine of vicarious liability was designed to offset punitive actions already committed by lower-level supervisors against a victimized employee. But if no such act had been committed, the "affirmative defenses" were installed to prompt employers to come up with workable procedures to discourage workplace harassment and, at the same time, encourage employees to voice their complaints timely.

"What they (the justices) came up with was pretty fair," remarked Amlong. "If there is a tangible job detriment, the company is absolutely liable. So if Bluto fires Olive Oyl because she won't put out, then the company is stuck with it. If Bluto simply talks dirty to Olive Oyl, and there is a mechanism through which she should complain, it is really not reasonable to hold a company liable if the company is trying to curb certain behavior."

As an attorney, Beth Faragher can understand why the Court allowed employers the defenses.

"With my case, they set up what is now the Faragher-Ellerth defense, if you have a policy in place that prohibits sexual harassment, and offer employees a way to report it, not to the harasser, but other means to report it, then an employer can raise that as a defense to liability..."we (victims) had a chain of command. Now, if employees don't take advantage of it, employers can raise the defense."

Amlong thinks that more companies have learned the lesson over the past 10 years that it's vital to devise and disseminate a viable sexual harassment policy. "Companies that don't are incredibly stupid."

"Any company that's worth anything has a sex harassment policy," noted Rossiello. "Some of them have terrific policies, but some of the managers and employees don't even know about it. If they do know about it, they don't implement it."

Some employees are still reluctant to come forward. "Not as many of them step up as should," noted Amlong. "You have to look it at it on a case-by-case basis."

Faragher, like other sexual harassment victims, had to convince herself to come forward. Unlike some other women who have filed complaints, she wasn't forced to remain in the stressful position while litigating. "I was willing to pursue the case because I was leaving the beach and my lifeguard position to go to law school back in Ohio. That's the only reason I had guts enough to do it. "I was terrified of those men. I doubt I would have done it except for the fact I was leaving."

Amlong, in a recent law journal article, wrote that "a plaintiff's biggest mistake is to suffer in silence."

Companies, however, have to clearly spell out procedures for reporting harassment, including a list of managers available to hear employee complaints. Further, attorneys say, an employer must make sure that employees see or are aware of the policy. Some companies require the employee to sign a document stating they had read and understood it. However, in one case of a female miner who was harassed and assaulted by a supervisor in an isolated section of the mine, one appeals court said that the company could not use its policy to dismiss the miner's claim, even though she did not report the assault promptly. The court noted that the physical policy was on file in an office very far from the mine interior where the employee worked and that she rarely visited the office.

Mary Rose Strubbe, a law professor at Chicago-Kent University, believes that the Faragher/Ellerth decisions prompted employers to make more effective steps to resolve, not just litigate, harassment issues. "I think that it took a number of years but I believe the decisions have had tremendous effect in the workplace. The affirmative defense structure that the courts set up in cases of supervisory harassment has encouraged employers to have real anti-harassment policies, not just something on a piece of paper."

Strubbe said that that empirical studies indicate that more employees are coming forward. "I think that the lower courts over the last 10 years have acknowledged that it can be difficult and intimidating for employee to complain, but they have to be willing to take the risk, under normal circumstances, because without an employee complaint, the policy isn't going to work."

Beth Faragher, an attorney for over 10 years and now a magistrate in Denver, has never gotten the chance to argue the elements of her own case in her trial work. She worked first as a public defender, then built her private practice around criminal defense work. She has handled some employment law cases, but none citing her case. "I have some colleagues in the plaintiff lawyers association and those people know who I am. And I've spoken at a couple of meetings, and that type of thing."

Once, while representing a client, she chatted briefly with a Department of Justice attorney during a break in the proceedings. "He said, 'Beth Faragher? Are you any relation to the Faragaher v. City of Boca Raton case?' I said , 'Oh yes, that was me.' "