Young V. Bayer Corp.: When Is Notice of Sexual Harassment to an Employee Notice to the Employer?

I. INTRODUCTION Beth Ann Faragher and Nancy Ewanchew were both working as lifeguards for the City of Boca Raton, Florida in the Parks and Recreation Department's Marine Safety Section when they were subjected to sexual harassment by their supervisors.1 Faragher testified that a supervisor touched her shoulders and waist numerous times, "patted her thigh" and "slapped her on the rear end."2 Ewanchew alleged "two specific incidents where [the same supervisor] touched her in a sexually offensive manner."3 Both women informed one of their supervisors, Marine Safety Lieutenant and Training Captain Robert Gordon, of the harassment.4 Gordon told no one, despite the fact that other female lifeguards had complained about harassing behavior too.5 Faragher sued the city for sexual harassment under Title VII6 and won.7 On appeal the Eleventh Circuit reversed, stating, inter alia, that Gordon's knowledge of the sexual harassment could not be imputed to Boca Raton because Gordon "did not rank as higher-management in the City."8 Therefore, the city had no duty to act on Gordon's knowledge and was not liable for its failure to do so.9 Consider too the case of Karen Van Zant. Hasan King, Van Zant's co-worker, regressed over a period of months from flirting with Van Zant to "making lewd sexual remarks to her."lo Van Zant's supervisor, Emily Browne, apparently knew of the situation (as did a supervisor from another department)ll but took no action until Van Zant reported that King exposed himself to her.l2 Browne then reported the incident to the employer's personnel director.13 Van Zant sued for sexual harassment under Title VII, alleging her employer should be liable for not responding sooner to Browne and the other department supervisor's knowledge of the harassment.14 The Second Circuit rejected that argument, ruling that Browne and the other supervisor were too "low-level" to impute knowledge to the employer.15 Finally, consider the case of Terri Nichols. Deaf and mute, Nichols could only communicate via sign language with Ron Francisco, the highest ranking supervisor on her shift.ls Francisco subjected Nichols to six months of extreme sexual harassment resulting in myriad personal problems for Nichols.l7 Nichols finally reported Francisco's harassment and instigated a sexual harassment suit under Title VII against her employer, the United States Postal Service.la Correcting the district court, the Ninth Circuit stated the proper test for determining employer liability was `what management level employees knew or should have known."9 Under this test the Postal Service was not liable.20 As illustrated by the foregoing examples, under current law,21 the determination of which employee's22 notice of sexual harassment can be deemed notice to the employer is often the key to determining employer liability for Title VII hostile environment sexual harassment claims.23 A finding of employer liability is important because it plays a central role in providing relief to the victim24 and achieving the equality-by-deterrence purposes2 of Title VII. Thus, deciding the circumstances under which an employee's notice can be treated as employer notice is immensely important. Despite the importance of this issue it has not received the scholarly attention it deserves. Commentators typically focus, instead, on the overall state of sexual harassment law (critiquing current, and proposing new, grounds for imposing employer liability). Though useful, these commentaries have failed to adequately address the narrower but important question of which employee's knowledge of sexual harassment may be imputed to the employer. This Note examines the approaches courts have taken in determining which employees' knowledge of sexual harassment can be imputed to the employer. In particular, this Note analyzes the approach taken in Young v. Bayer Corp.,27 a recent Seventh Circuit decision. Part II discusses the current state of the law for employer liability under Title VII, more fully revealing why the question of imputing knowledge to the employer is an important, if not the most crucial, inquiry in every circuit. …