March 29, 1999

Dear Human Resource Professionals, Managers, and Employees:

The subject of this letter is sexual harassment. Last summer the United States Supreme Court gave some unusually clear guidance for assessing liability in sexual harassment cases. The United States Fifth Circuit Court of Appeal, which serves us here in Louisiana, has also had an opportunity to refer to these cases in resolving sexual harassment claims. These cases are referred to in the body of this newsletter with their legal citations at the end of the newsletter. These guidelines will likely be applied in resolving liability for other claims of discrimination. First, a summary of the holdings of these cases.

The employee must first prove that "sexual harassment" took place. This exists when severe or pervasive conduct or speech is undertaken either by a supervisor or a co-worker. It must be such that the work environment is deemed hostile to a reasonable person. "Hostile" is something more than the result of light banter, and is the result of truly offensive conduct or speech. If "sexual harassment" is not shown, the employee cannot prevail.

The Fifth Circuit in Indest told us that "we have always regarded that requirement of objectively offensive, severe, or pervasive conduct as crucial, and is sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace - - such as male-on-male horse play or intersexual flirtation - - for discriminatory conditions of employment" and that "common sense and an appropriate sensitivity to social context . . ." is a helpful guide in seeking to identify sexual harassment.

Additionally, the U.S. Supreme Court in Faragher gave something of a check list when it stated:

"In order to be actionable under the statute, a sexually objectional environment must be both objectively and subjectively offensive", and that while one must look at "all the circumstances", some helpful guidelines are 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."

The facts that were found to constitute actionable sexual harassment in Faragher were words, touching, and pantomime that would be objectively offensive to anyone not on Bourbon Street at the time. Using guidelines like these, however, can lead to an endless and confusing debate which obscures the application of "common sense and an appropriate sensitivity to social context . . ." suggested to us by the Fifth Circuit in Indest. That is, as state managers we do not want any kind of harassment or discrimination to take place in the workplace, whether it rises to a level sufficient to create liability in the state, or not. Such an atmosphere is not conducive to the efficient and effective operation of government, nor is it fair. Strong and well communicated policies and procedures for bringing such conditions to the attention of responsible managers, and then resolving the condition are important to maintaining a healthy and effective workplace. As shown by the discussion below, they can also help avoid legal liability where such harassment and discrimination rises to the legal liability level.

If sexual harassment is shown, a second level of inquiry is undertaken to determine if the speech or conduct that meets the sexual harassment test is by one in a supervisory chain of command and whether a tangible employment action has been taken involving the one who was the object of the speech or conduct. The Supreme Court in Ellerth gave examples of tangible employment actions as "a significant change in employment status, such as discharge, demotion, or undesirable reassignment." As shown more fully below, a tangible employment action is not required to establish liability, but where it is shown the liability of the employer is absolute. That is, there is no defense available to an employer where a supervisor in the employee's chain of command engages in what is found to be sexual harassment and where a tangible employment action is taken.

Where there is no tangible employment action and where either a supervisor or a co-worker engages in what is found to be sexual harassment, the employer does have a defense to liability. The employer may show that it took steps to prevent and correct sexually harassing behavior and/or that the employee did not take advantage of preventive or corrective opportunities provided by the employer. Case law gives us some examples of successful and unsuccessful defenses in this area.

In Indest an employee was subjected at the hands of a vice-president to what we can here called sexual harassment and reported the acts to her second and third line supervisors. These supervisors put her in touch with the corporation's human resources director in another city. This human resources director promptly investigated and the result was that:

"Based on Freeman's (the employer) prompt, humiliating punishment of Arnaudet (the vice-president), including verbal and written reprimands, suspension without pay for a week, and banishment from his own sales meeting, and based upon the complete cessation of harassment following this incident, the district court concluded that Freeman's actions were sufficiently swift and effective to preclude corporate vicarious liability for Arnaudet's conduct.

That was not the result, however, in the Williamson case. Ms. Williamson was a police officer for the Houston Police Department who was subjected to sexual harassment at the hands of a co-worker and who related the incidents to her supervisor. This is what the policy of the Houston Police Department required. The supervisor, however, did nothing. The Court concluded that the City of Houston was deemed to have knowledge of the harassment and to have done nothing to stop it because this supervisor knew of the sexual harassment. The supervisor's knowledge was deemed to be the employer's knowledge and the lack of action of the supervisor was deemed to be the employer's lack of action.

The Court in Williamson recognized that the policy of the Houston Police Department stated that if the employee was not satisfied with the action of the supervisor, the employee could go directly to the Director of Affirmative Action in the city. The Court rejected the argument of the city that because Ms. Williamson did not pursue this course the city should not be held liable for the sexual harassment. The Court stated that "if the employer has structured its organization such that a given individual has the authority to accept notice of a harassment problem, then notice to that individual is sufficient to hold the employer liable." All of our grievance procedures require that the first step is to file a claim with the supervisor. If that supervisor handles the problem poorly, the defense of a procedure for resolving complaints will likely not be available to us.

In another case involving the Houston Police Department in about the same time frame as Williamson, two levels of supervision were the persons sexually harassing a female officer. This is the Sharp case. The policy allowed Ms. Sharp to go around the chain of command as in the Williamson case, and it was shown that Ms. Sharp knew of this policy but did not go around the chain of command. The Fifth Circuit Court of Appeal was reviewing a jury finding that the city was liable, and the Fifth Circuit concluded that the jury could easily have concluded based on the testimony presented that Ms. Sharp would have been ostracized by the rest of the police department had she done that. That is, even though there was a way around harassment by a supervisor, the atmosphere at the workplace precluded her from doing so. Stated otherwise, the alternative route to complain of the harassment was not readily open to her. There is another aspect of this case, however, that is of more interest.

Ms. Sharp worked at a physically remote location at which the senior officer was one of the harassers. This senior officer's supervisor was at headquarters. The city sought to show it did not have knowledge of the harassment because of the physical remoteness of the unit. The Court concluded, however, that the city should have known of the harassment because " it would be absurd to allow an employer to insulate itself from liability simply by isolating its units from management." There was an obligation on the part of the supervisor at headquarters to exercise his responsibility for supervision and that "the jury could have concluded that Captain Brown exerted almost no supervisory authority over Hankins or Mounted Patrol and that such negligent failure to supervise violated even internal HPD procedures."

What do we learn, then, regarding the responsibility of an employer to establish a meaningful procedure for dealing with claims of sexual harassment? What threads through these cases, I believe, is what threads through all of employment law, i.e. fairness. It is not fair to require an employee to put up with sexual harassment in the workplace, and the Supreme Court has told us that an effective procedure for dealing with such harassment can prevent us from being cast for damages when it occurs. It is not fair to require an employee to continue to push through higher levels of supervision when we have told that employee to bring a complaint to her supervisor. We may argue that the employee should have known that the supervisor was not going to do anything when nothing was done and, if she was really offended, to push on to higher authority, but that not the view of the Fifth Circuit. Additionally in the view of the Fifth Circuit, it is not fair to require an employee to go around her supervisor to the supervisor's supervisor when that higher supervisor takes no interest in the operation of the immediate supervisor. The employer cannot say that it did not know things were so bad when the employer did not get out of the office to make its presence known at the workplace. Please take the lessons of these cases to heart. We do not want to be cast for damages, and, equally important, we want to maintain a healthy and effective work environment. Check your policies. Educate your employees.

The legal citations to these cases are as follows. Faragher vs. City of Boca Raton, 118 S. Ct. 2275 (1998); Burlington Industries vs. Ellerth, 118 S. Ct. 2257 (1998); Indest vs. Freeman Decorating Inc., No. 96-30212, 1999 WL 923 (C.A. 5(LA) 1999); Sharp vs. City of Houston, et al., No. 97-20602, 1999 WL 10153 (C.A. 5 (Tex) 1999); Williamson vs. City of Houston, et al., 148 F. 3d 462 (C.A. 5 (Tex) 1998).

Sincerely,

Robert R. Boland, Jr.

General Counsel