Sexual Harassment and Title VII: Selected Legal Issues
Released: 2018-04-09T00:00:00

Introduction

The issue of sexual harassment in the workplace has received significant attention in recent months amid reports of harassment and sexual assault by high-level executives, managers, and employees across a range of industries. This attention has prompted inquiries into the prevalence of harassment, the scope and sufficiency of legal protection for harassment victims, and issues ranging from the use of confidentiality provisions in settlement agreements that preclude victims from speaking publicly about allegations to how to improve procedures by which employees can seek remedy for harassment in all three branches of government.

This report addresses various legal issues related to sexual harassment and Title VII of the Civil Rights Act of 1964 (Title VII), the federal statute that generally prohibits discrimination in the workplace, including discrimination based on sex. As the statute contains neither an express prohibition against harassment nor a definition of harassment, this report examines (1) how the Supreme Court and federal appellate courts have mapped out the scope of protection that Title VII provides employees against sexual harassment, including the Supreme Court's "severe or pervasive" standard that harassment victims must meet to show a Title VII violation (which applies to most Title VII sexual harassment claims); (2) limits on employer liability for harassment; and (3) retaliation for reporting harassment, among other issues.

Background and Existing Legal Standard

Title VII makes it unlawful for employers to discriminate "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Though Title VII's antidiscrimination provisions do not expressly prohibit harassment, the Supreme Court and federal circuit courts interpret Title VII's prohibition against discrimination in the "terms, conditions, or privileges of employment" to prohibit harassment based on race, color, religion, sex, or national origin.

When a plaintiff raises a Title VII harassment claim, federal courts often describe the action as alleging "harassment" or a "hostile work environment." The interchangeable use of those terms is perhaps best understood as reflecting the current statutory anchor of a Title VII harassment action: as the statute does not expressly prohibit or define harassment, such claims are framed as violations of Title VII's prohibition against a discriminatory and abusive work environment, based on the phrase "terms, conditions, or privileges of employment."

The "Severe or Pervasive" Standard and the Harris Factors

The Supreme Court's legal standard for analyzing harassment claims—including sexual harassment claims—primarily focuses on whether the alleged conduct is "severe or pervasive" enough to create an abusive or hostile work environment for the victim. Under this existing standard, even if a victim were to experience offensive or harassing conduct, a harasser's actions will not constitute a Title VII violation unless those acts in total were "severe or pervasive" enough to create an "abusive" or "hostile" work environment.

To prevail on such a claim, a plaintiff must generally (1) establish the requisite elements of a hostile work environment claim and (2) show a basis for holding the employer liable for that abusive or hostile conduct. A plaintiff can also show a violation of Title VII based on quid pro quo harassment, also discussed in this report.

Courts vary in their formulations of this overall analysis, but generally require that the plaintiff satisfy the following elements to establish a prima facie showing of actionable harassment (including that the conduct was sufficiently severe or pervasive, as analyzed under the last "objective" prong):

he or she belongs to a protected category under Title VII; the conduct was unwelcome; the conduct was based on the plaintiff's protected category; the plaintiff subjectively viewed the harassment as creating an abusive work environment; and a "reasonable" person would also objectively view the work environment as abusive.

This last objective prong typically constitutes the most probing aspect of the analysis and is the point at which courts apply language from the Supreme Court decision, Harris v. Forklift Systems, Inc. , to assess the severity or pervasiveness of the conduct. More specifically, federal courts apply Harris 's instruction that a court should consider "all the circumstances," 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."

It should be noted that the Court has characterized its own Title VII hostile work environment jurisprudence as "mak[ing] clear that conduct must be extreme to amount to a change in the terms and conditions of employment," and has noted that the rationale for such a standard is to "ensure that Title VII does not become a 'general civility code.'" "A recurring point in [our] opinions," the Court stated in Faragher v. City of Boca Raton , "is that 'simple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'"

Federal Courts' Application of the Harris Factors

Failure to show sufficient severity or pervasiveness, under the objective prong of the analysis, is often the basis for dismissal of a Title VII harassment claim, in instances when a defense does not apply. Courts repeatedly note the difficulty of assessing whether harassing conduct is sufficiently severe or pervasive under Harris to amount to a Title VII violation and the high bar for showing such actionable harassment. As the U.S. Court of Appeals for the Second Circuit (Second Circuit) has observed, "[t]he line between complaints that are easily susceptible to dismissal as a matter of law and those that are not is indistinct. . . . And on either side of the line there are . . . gradations of abusiveness." As addressed in further detail below, there is substantial variance among federal circuit courts in terms of their application of this fact-intensive inquiry.

Though the Supreme Court in Harris observed that "[t]his is not, and by its nature cannot be, a mathematically precise test," appellate courts have since applied Harris with an emphasis on frequency, often numerically counting instances of harassment, noting the duration of the harassment and the severity of the conduct. As a general matter, courts most readily conclude that alleged conduct is sufficiently severe or pervasive when the behavior constitutes rape or involved physical threats at work, repeated solicitation for sex, repeated touching of intimate body parts, and/or daily or regular verbal harassment.

Even when addressing conduct with these characteristics, however, federal appellate case law reflects divergent analyses based on seemingly similar facts. Below are selected cases addressing harassment claims alleging serious physical and verbal misconduct, with fact-specific discussion to demonstrate applications of the "severe or pervasive" standard to behavior that could be characterized as egregious.

For example, in Turner v. The Saloon , Ltd ., the Seventh Circuit held that evidence was sufficient to create a triable issue that the harassment was sufficiently severe or pervasive, where the harasser grabbed the plaintiff's genitals, asked the plaintiff to kiss her, pressed against the plaintiff asking if he missed her, grabbed his buttocks, and told him she missed seeing him naked when she saw plaintiff change into his work uniform. When faced with potentially similar facts in LeGrand v. Area Resources for Community and Human Services , however, the Eighth Circuit held that the evidence was insufficient to show actionable harassment, where the harasser forcibly kissed the plaintiff "in the mouth," grabbed the plaintiff's buttocks, reached for the plaintiff's genitals, gripped the plaintiff's thigh, asked the plaintiff to watch pornographic movies with him, and on another occasion suggested that the plaintiff would advance in the company if he (the plaintiff) engaged in sexual conduct with the harasser while watching pornographic movies.

Meanwhile, the First Circuit held in Gerald v. University of Puerto Rico that the harasser's conduct—solicitation for sex on one occasion, touching the victim's breast on another occasion, and asking her in front of other co-workers why she would not have sex with him—was sufficiently severe or pervasive to constitute actionable harassment. Yet in Brooks v. City of San Mateo , the Ninth Circuit held that the harasser's conduct did not amount to severe or pervasive harassment, where the harasser touched the plaintiff's stomach while she was working and made a sexual comment, forced his hand underneath her sweater and bra to touch her bare breast, and then approached her as though he was going to "fondle her breasts again." The court emphasized that the conduct was "highly reprehensible," but under the applicable standard, repeatedly characterized the behavior as a single episode of harassment and an "entirely isolated incident."

A court's characterization of both the legal standard and the conduct at issue appears to significantly shape the analysis, and, correspondingly, the variability of the analyses. In Turner , for example, the Seventh Circuit emphasized that if there is touching of an intimate body part, such evidence weighs "most heavily" in determining whether the harassment is actionable. The court additionally stated that the harasser's grabbing of the plaintiff's genitals was "probably severe enough on its own to create a genuine issue of material fact" that the harassment was objectively severe or pervasive. In LeGrand , however, the Eighth Circuit characterized the conduct as being "manifestly inappropriate," but composed of only "three isolated incidents, which occurred over a nine-month period," thus rendering the conduct—in the court's view—"not so severe or pervasive as to poison [the plaintiff]'s work environment." The court in LeGrand also characterized the evidence as not demonstrating incidents that were "physically violent or overtly threatening."

As circuit precedent is controlling on both the circuit itself and lower courts within the circuit, older circuit precedent—by establishing minimum thresholds for conduct that constitutes actionable harassment—continues to shape recent analyses. More specifically, if circuit courts have held that certain fact patterns, as a matter of law, are insufficient to show the requisite severity or pervasiveness, lower courts in the circuit have accordingly held that fact patterns concerning similarly or less egregious conduct also do not amount to actionable harassment. For example, the Fifth Circuit held in Shepherd v. Comptroller of Public Accounts of State of Texas that harassment did not amount to actionable conduct under Title VII, where the harasser made remarks about the plaintiff's breasts and the size of her thighs, simulated looking under her dress, repeatedly stood over her desk and tried to look down her clothing, rubbed her from her shoulder down to her wrist with his hand while standing beside her on several occasions, and motioned for her to sit in his lap when plaintiff arrived late to a meeting, saying "here's your seat." While the court's analysis in Shepherd has been subject to criticism by later decisions, the Fifth Circuit and lower courts nonetheless continue to rely on Shepherd as controlling authority dictating conduct insufficient to create a hostile work environment in violation of Title VII.

Employer Liability for Harassment

Even when a plaintiff establishes the requisite elements of a prima facie case with respect to harassment—with a commonly contested issue being whether the conduct was sufficiently severe or pervasive to alter the plaintiff's working environment—the plaintiff must also show a basis for holding the employer liable for the harassment. The existing legal standard for evaluating employer liability is based on a framework arising from several Supreme Court decisions: Meritor Savings Bank v. Vinson , which held that employers are not always "automatically liable for sexual harassment by their supervisors," followed by two companion decisions, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth , which further delineated when employers could be held liable for workplace harassment.

Like harassment claims under Title VII, the legal standards for establishing employer liability for workplace harassment are not expressly included or addressed in the statutory text of Title VII. Indeed, the Supreme Court has repeatedly noted that Congress—in amending Title VII after its 1986 Meritor decision—has not altered or overruled Meritor 's limitation on employer liability for harassment. As discussed in further detail below, under the Supreme Court's formulation, establishing employer liability for workplace harassment turns significantly on whether the harassing employee was a supervisor.

The Faragher and Ellerth Decisions

The Faragher and Ellerth decisions hold that two considerations will be determinative of employer liability: the harasser's status—as the victim's supervisor or co-worker—and whether the harasser's actionable harassment also culminated in a "tangible employment action" (e.g., termination or demotion of the victim). Under this framework,

if the harasser was the victim's supervisor, and the actionable harassment also culminated in a "tangible employment action," the employer will be strictly liable for the harassment; if the harasser was the victim's supervisor, and the harassment was actionable but did not culminate in a tangible employment action, the employer can avail itself of an affirmative defense to avoid liability altogether.

In fashioning its rule for employer liability, the Court in Faragher and Ellerth made several observations. First, the Court observed that all workplace harassment is in some sense aided by the employment context wherein "[p]roximity and regular contact may afford a captive pool of potential victims." Moreover, the Court stated that "a supervisor's power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation."

While there "are good reasons for vicarious liability for misuse of supervisory authority," the Court in Faragher explained that it was not permitted to recognize that theory unless it could be "squared with Meritor 's holding that an employer is not 'automatically' liable for harassment by a supervisor." Indeed, the Court noted that "[t]he decision of Congress to leave Meritor intact is conspicuous." Similarly, in Ellerth , the Court stated that it was bound—absent congressional action overturning Meritor —by Meritor 's holding that employer liability for harassment was subject to limitation.

In addition, despite the fact that "most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation," the Court explained that attaching employer liability on that basis alone was not a result reflected by lower court decisions or enforced by the Equal Employment Opportunity Commission (EEOC), and thus, "something more than the employment relation itself" was required to establish employer liability."

The Court then differentiated between two types of harassment by a supervisor: actionable harassment, and actionable harassment that culminates in a tangible employment decision such as firing the victim. The Court reasoned that when a harassing supervisor "makes a tangible employment decision" against the employee, he or she would not have had been able to inflict such injury "absent the agency relation" provided by the employer, as the employer empowered the harasser to exercise control over others. The Court concluded that if supervisory harassment culminates in a tangible employment action, the supervisor's acts are attributable to the employer for Title VII purposes because tangible employment actions "are the means by which the supervisor brings the official power of the enterprise to bear on subordinates." The Court held that an employer is strictly liable for such supervisory harassment.

If harassment by a supervisor is not accompanied by a tangible employment action, the Court stated it was "less obvious" whether the "agency relation" facilitated the individual's harassment. Thus, to "accommodate the agency principles of vicarious liability for harm caused by supervisory power" and to effectuate Title VII's preventative and deterrent purposes, the Court placed a limitation on employer liability in cases in which a supervisor's harassment does not culminate in taking a tangible employment action. In these instances, the Court held that an employer could be vicariously liable for the actionable harassment by a supervisor, but could raise an affirmative defense, often called the Faragher-Ellerth defense. This defense requires that the employer establish, by a preponderance of the evidence, both of the following elements to negate liability: (1) "that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and (2) "that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise."

If the harasser was the plaintiff's co-worker , circuit courts analyze employer liability under the negligence standard, with the burden of proof on the plaintiff. To meet this standard, the plaintiff must generally show that the employer knew or should have known about the harassment and failed to take effective remedial action.

Application of the Faragher-Ellerth Defense

Following the Supreme Court's Faragher and Ellerth decisions, federal courts of appeals have evaluated the applicability of the defense and whether a defendant has offered evidence sufficient to establish both elements:

1. "that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and 2. "that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise."

By establishing both elements, an employer avoids liability for supervisory harassment altogether, regardless of how severe or pervasive the harassment at issue.

With respect to the first prong of the defense—that an employer show it "exercised reasonable care to prevent and correct promptly" the harassment—federal courts consider various factors in that analysis, including the nature of the harassment at issue, the time it took for the employer to respond, whether there was an investigation and what occurred in the investigation, evidence of an anti-harassment policy, and any other evidence concerning an employer's efforts to prevent and respond to harassment. Though federal appellate courts generally agree that an employer's actions must be "reasonably calculated" to prevent or stop further harassment, courts differ in their application of the type of evidence that is sufficient to satisfy this prong.

For example, when evaluating an employer's response to harassment that included sexual assaults and a rape, the Tenth Circuit cited various features of the investigation that created a triable issue that the employer, a sheriff's office, had failed to satisfy the first prong of the defense. Among other facts, the court stated that the sheriff had assigned the investigation to a detective who was never trained in conducting harassment investigations; this detective was a close friend of the alleged harasser and considered him a mentor; the detective focused the investigation on gathering details about the plaintiff's sex life rather than the allegations of sexual assault and rape, and repeatedly told her she should resign. When the detective informed the sheriff there was a possible rape, the sheriff instructed that the investigation should stop, with no evidence that the department sought to improve its sexual harassment program thereafter. Though the harasser later resigned, the court stated that that fact "alone is not sufficient to avoid vicarious liability."

In another analysis of an investigation, however, the Eighth Circuit held that an employer satisfied the first prong of the affirmative defense, in a case in which the employer's investigation culminated in a finding that the alleged harasser had engaged with the female employees in a "nonsexual" manner, though the behavior included "massaging their shoulders, neck, and upper chest underneath their uniforms," "going under their desks in order to massage their legs," and making comments about the physical appearance of women. In that case, the employer also refused to give the plaintiffs the results of the investigation, but shared this information with the alleged harasser, including the names and statements of the witnesses; and the harasser continued to be a presence in the plaintiffs' work area. Acknowledging "flaws" in the investigation, the court held that other facts established the first prong of the defense, "most significant[ly]" that the harassing behavior stopped the day that one of the plaintiffs reported it to upper management.

With respect to the second prong of the defense—that an employer show a plaintiff's unreasonableness in failing to take advantage of its preventative or corrective opportunities—courts generally examine whether the employer had a procedure for reporting harassment and whether the plaintiff was unreasonable in failing to avail herself/himself of that process. When a plaintiff never reports—or delays reporting—harassment out of fear of retaliation or concern that the official responsible for resolving complaints is unlikely to remedy the harassment, circuit precedent reflects tension in evaluating the plaintiff's reasonableness in such situations.

In analyzing this second prong, for example, the First Circuit held that an employer had not established the plaintiff's unreasonableness based on her one-year delay in reporting an assault by her supervisor. The court reasoned that a jury could conclude the plaintiff was reasonable in delaying her report, in part because she was a teenager at the time of the assault while her supervisor was twice her age. In its analysis, the court also noted the supervisor's threats that she would be fired if she reported the assault, that both of them would be fired, and that he had influential ties to the owner of the company who had previously acted in his favor in another circumstance involving his rumored involvement with a young woman.

Addressing a case that also involved a one-year time period after which plaintiffs reported harassment by a direct supervisor, the Eighth Circuit held that the employer had satisfied a showing that the plaintiffs, both officers in the police department, had acted unreasonably as a matter of law in support of its affirmative defense. In so holding, the court rejected the plaintiffs' arguments that they had credible fears of retaliation and doubted they would receive a fair investigation given the close relationship between the harasser and the police chief. Though the court acknowledged the "'enormous difficulties involved in lodging complaints'" and the heightened psychological burden of requiring victims to report harassment when they also perceive bias in favor of the harasser, the court stated that only "credible" fears of retaliation could excuse their yearlong delay, and in the absence of evidence of "any threat by any Department employee," the plaintiffs' fear of retaliation did not "excuse" their delay.

Application of the Negligence Standard for Co-worker Harassment

Under the Faragher-Ellerth paradigm, an employer can avoid liability for harassment committed by one of its supervisors by proving both elements of that affirmative defense, as described above. However, when the alleged harasser is a co-worker, rather than a supervisor, an employer's liability for that harassment hinges on the plaintiff's ability to prove that the employer was negligent in allowing the harassment to persist. "To satisfy that standard, the complainant must show that the employer knew or should have known of the offensive conduct but failed to take appropriate corrective action." This standard may not appear complex or controversial, but its application is heavily fact-dependent and varies from case to case.

To determine whether or not an employer "knew or should have known" of the offensive conduct, courts look at the entirety of the circumstances to determine whether knowledge by the employer can be imputed from the facts. Reporting to management personnel who are designated to receive such complaints will generally count as notice. However, if a complainant reports to someone who is not the designated individual for receiving such complaints, it is less obvious whether an employer should be charged with knowledge. Courts have held that it is not enough that the complainant has told just anyone about the harassment; the enterprise must have been given a "reasonable chance of being able to respond to the information." The organizational structure of the company is relevant in this inquiry, but not decisive. Ultimately, the court will look at whether a complainant "complain[ed] to someone who could reasonably be expected to refer the complaint up the ladder to the employee authorized to act on it."

Regardless of a report, if a manager actually witnesses harassment or similarly inappropriate conduct, it may amount to notice. Further, a company cannot escape liability by adopting a "see no evil, hear no evil" strategy. An employer which lacks reasonable mechanisms or procedures for reporting misconduct, for example, may be charged with constructive knowledge of the co-worker harassment at issue.

Even without evidence of a report to management, or of a manager who witnesses sexual harassment, courts may impute knowledge of the harassment to the employer if there is other evidence from which an employer's knowledge could be inferred. For example, in Duch v. Jakubek , the Second Circuit found that a reasonable jury could conclude that a supervisor had notice of sexual harassment in light of the circumstances, including that the plaintiff had sought to change her schedule to avoid working with the harasser; the harasser had engaged in sex-related misconduct in the past; the supervisor had told the harasser to "cut it out and grow up"; and the supervisor had observed that working around the harasser caused the complainant to become emotional and visibly upset. Similarly, in Hawkins v. Anheuser-Busch, Inc. , the Sixth Circuit reversed the district court's determination that there was no genuine issue of material fact that a brewery knew or should have known of harassing conduct. There, even though the plaintiff had never reported individual incidents of harassment or cited sexual harassment in her complaints, the court emphasized that she had nonetheless repeatedly complained about her co-worker's "unbearable" behavior and asked for a transfer, and that the harasser had a known history of sexual harassment of other victims. Thus, the question of whether an employer is on notice of harassment is not a mechanical one, but will depend on the evidence.

Beyond establishing actual or constructive knowledge of the harassment, in order to establish negligence, a plaintiff must also show that the employer failed to take prompt and appropriate corrective action. This does not mean that the employer must take all actions that a plaintiff requests: "all that [the employer is] required to do . . . [is] to take prompt action reasonably calculated to end the harassment and reasonably likely to prevent the conduct from recurring." Employers must take actions which seek to end current harassment and deter future harassment in the given context of that workplace. In Berry v. Delta Airlines , for example, the Seventh Circuit concluded that an employer reacted promptly and appropriately to end the harassment, where the employer immediately contacted its local EEOC office, began an investigation, confronted the harasser and later changed his shift to separate him from the victim, and required all local employees to view a sexual harassment training video. These actions stopped future harassment and were sufficient in the court's view, even though the plaintiff argued that Delta should have done more, such as separating her and the harasser at an earlier date, ordering the harasser to leave her alone, or requiring the employees to engage in discussion sessions.

In contrast, courts have held that employer responses were insufficient to remedy the harassment, for example, when an employer advised or counseled the harassers to stop without taking any additional actions or discipline, or involuntarily transferred the plaintiff. Further, even if the employer's actions stop the harassment, that fact alone may be insufficient to show an effective remedial response on the part of the employer. In one Sixth Circuit case, the employer argued that it responded adequately to a plaintiff's allegations of harassment by transferring her to another shift at her request, launching a prompt investigation including interviewing numerous employees and sending the complainant a letter informing her when the investigation was complete and that retaliation would not be tolerated. The appeals court found that these measures were insufficient to justify summary judgment for the employer. Even though the harassment stopped because of the transfer and the employer argued that the evidence revealed in its investigation provided insufficient ground under its collective bargaining agreement on which to terminate the harasser, the court noted that the harasser had a history of sexually inappropriate conduct and a history of lying about it. Under those circumstances, the court concluded that a jury could find that the remedy was insufficient.

Disputed Supervisory Status and Vance v. Ball State University

Under the Faragher-Ellerth paradigm, the harasser's characterization—as a supervisor or co-worker—has significant legal implication.

If the harasser is a supervisor, the employer bears one of two outcomes: it is either strictly liable for the harassment or it is liable unless it can establish both elements of an affirmative defense. If the harasser is a co-worker, however, the plaintiff has the burden of proof for establishing the prima facie elements of a hostile work environment claim—including objective severity or pervasiveness— and the employer's negligence. In other words, if the harasser is a co-worker, the plaintiff bears a heavier burden of proof to establish employer liability, as the employer is neither strictly liable for that harassment nor has to prove an affirmative defense to avoid liability.

Given the legal significance of the harasser's status, parties often dispute the issue, and courts in turn must determine whether the evidence shows that the harasser was a supervisor or co-worker.

Against a backdrop of disagreement among circuit courts concerning the type of evidence indicative of supervisory status, the Supreme Court addressed the issue in its 2013 decision in Vance v. Ball State University . Though the Faragher-Ellerth decisions held that an employer could be liable for harassment by its supervisors, the Court did not define the meaning of "supervisor" in those cases, and lower courts in turn applied varying interpretations in the absence of a definition. Answering that question left open by the Faragher- Ellerth decisions, the Court in Vance held, in a 5-4 decision, that a supervisor—for the purpose of establishing employer liability under Faragher and Ellerth — is one who has the authority to take actions in the workplace such as hiring, firing, making promotion decisions, reassigning to positions "'with significantly different responsibilities,'" or making decisions "'causing a significant change in benefits.'" By defining a supervisor solely in those terms, the Court expressly rejected a definition based on whether the alleged harasser had authority to direct the victim's daily work, thereby narrowing the definition of supervisor that some lower courts had previously applied.

In its analysis, the Court noted that a plain language interpretation of the term "supervisor" was not an applicable approach, as "'[s]upervisor' is not a term used by Congress in Title VII." Instead, because that term was adopted by the Court in Faragher and Ellerth to identify when harassment is imputable to the employer, the Court explained that "the way to understand the meaning of the term 'supervisor' for present purposes is to consider the interpretation that best fits within the highly structured framework that those cases adopted."

Accordingly, turning to its analyses in Faragher and Ellerth , the Court in Vance stated that those decisions "dr[ew] a sharp line between co-workers and supervisors," and concluded that the "strong implication" from language in Ellerth concerning supervisors and tangible employment actions was that the authority to take such actions "is the defining characteristic of a supervisor." In the Court's view, its definition of supervisor—one empowered by the employer to take tangible employment actions—is a clear, readily workable standard that will, in "a great many cases," be known to the litigants even before litigation has commenced and, if disputed, would be capable of resolution at summary judgment.

The Court contrasted the clarity of its adopted standard with the "vagueness" of the standard proposed by the government as amicus curiae in Vance , which urged the Court to adopt the EEOC's definition of supervisor—a standard that would analyze whether the harasser had authority "'of sufficient magnitude so as to assist [him] explicitly or implicitly in carrying out the harassment.'" Addressing the EEOC's Enforcement Guidance, which described how to apply its definition of supervisor, the Court stated that it "read the EEOC Guidance as saying that the number (and perhaps the importance) of the tasks in question is a factor to be considered in determining whether an employee qualifies as a supervisor," and concluded that such a standard was one of "remarkable ambiguity." By way of example, the Court pointed to the government's answers at oral argument, during which the government attorney was unable "to provide a definitive answer" to the question of whether a harasser who had the authority to direct a victim to clean toilets for a year would amount to a supervisor. Applying the EEOC's standard, in the Court's view, "would present daunting problems for the lower federal courts and for juries."

Addressing the employee's contention that supervisory status based on the ability to take tangible employment actions would encourage employers to concentrate such authority in a few individuals to avoid liability, the Court stated that an employer would still be subject to liability if its negligence led to the hostile work environment. The Court also noted that even if an employer concentrated such authority in a few individuals, those individuals would in turn "likely rely on other workers who actually interact with the affected employee," and in those circumstances, the employer could "be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies."

The Court also described the negligence standard as providing sufficient protection for employees who were harassed by an individual who could assign them unpleasant tasks or alter their work environment. Such victims, the Court stated, could "prevail simply by showing that the employer was negligent in permitting this harassment to occur," adding that the jury should be instructed that the "nature and degree" of the harasser's authority was an "important factor to be considered in determining whether the employer was negligent."

The Dissent in Vance

The Court's decision drew a lengthy dissent, which described the majority opinion as "[e]xhibiting a remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC's Guidance." The definition adopted by the Court, the dissent contended, marked a shift in "a decidedly employer-friendly direction," would "leave many harassment victims without an effective remedy," and "ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation's workplaces."

With respect to the EEOC Guidance, the dissent explained that the EEOC had defined supervisor in the following way:

(1) an individual authorized "to undertake or recommend tangible employment decisions affecting the employee," including "hiring, firing, promoting, demoting, and reassigning the employee"; or

(2) an individual authorized "to direct the employee's daily work activities."

In the dissent's view, the EEOC's definition was "powerfully persuasive," and the application of that standard would be fact-specific: "an employee with authority to increase another's workload or assign undesirable tasks" could constitute a supervisor because "those powers can enable harassment," while "an employee 'who directs only a limited number of tasks or assignments' ordinarily would not qualify as a supervisor, for her harassing conduct is not likely to be aided materially by the agency relationship."

The dissent discussed several fact patterns from Title VII cases to illustrate its contention that the Court's holding would operate to exclude as supervisors those harassers who used their status to inflict actionable harassment, but lacked the ability to hire or fire the victims. In one such example, the dissent pointed to a case involving a newly hired female truck driver who was required to take a 28-day, on-the-road truck driving program as a trainee. For that training, she was paired with a male "lead driver," who controlled her work environment for the duration of the trip but lacked the authority to take tangible employment actions. Over the course of her on-the-road trip, her first lead driver subjected her to sexually vulgar remarks, including comments about her breast size, while her second lead driver "forced her into unwanted sex," which she submitted to because she thought it was necessary to gain a passing grade for the training. In such a case, the dissent contended, the harassers were "vested with authority to control the conditions of a subordinate's daily work life" and used their position to aid in harassing the subordinate, yet would not constitute a supervisor under the Court's adopted definition.

Responding to the Court's assertion that its standard was one that could be "readily applied," the dissent contended there was "reason to doubt just how 'clear' and 'workable'" its definition was. As a tangible employment action includes the ability to reassign an employee to significantly different responsibilities, for example, the dissent pointed out such a definition invites questions concerning what constitutes "significantly different responsibilities" and whether any economic consequence could render a reassignment a tangible employment action. The dissent also pointed to the Court's statements concerning "other workers" whom a decisionmaker relies on for recommendations concerning tangible employment actions, and under what circumstances such workers could constitute supervisors for vicarious liability purposes under the new standard. Moreover, the dissent asserted, the Court has previously emphasized the importance of fact-specific analyses in the Title VII context, and its search for a definition "capable of instant application" was inconsistent with that approach.

As for the negligence standard, the dissent stated that it "scarcely affords the protection" given by the Faragher-Ellerth framework to harassment victims, as an employer is negligent with respect to harassment "only if it knew or should have known of the conduct but failed to take appropriate corrective action," and even where a harasser has a reputation for such behavior, a complaint may not reach management to satisfy actual or constructive notice. In addition, the dissent stated that the plaintiff bears the burden of proving negligence, and requiring the plaintiff to bear that burden created a "steeper substantive and procedural hill to climb" for victims. The dissent concluded by calling upon Congress to "correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today."

Circuit Analyses Post-Vance

Since Vance , federal courts of appeals have generally applied the Vance standard to require evidence that the alleged harasser was authorized to take tangible employment actions to constitute a supervisor, even if evidence reflects the harasser exercised other authority over the plaintiff. In other words, where the alleged harasser directed or assigned the victim's work, but lacked the authority to make decisions such as hiring or firing, courts have held that the individual was not a supervisor.

There is disagreement, however, among courts of appeals concerning Vance 's application to fact patterns involving delegated authority, where an employer relies on a harasser's recommendations to take actions relating to the plaintiff and other employees. For example, in Kramer v. Wasatch County Sheriff's Office , the Tenth Circuit held that a sergeant constituted the plaintiff's supervisor, as evidence reflected that the defendant relied on recommendations from sergeants like him to make decisions regarding firing, promotion, demotion, reassignment, and discipline, and where the evidence also showed that the sergeant wrote the plaintiff's performance evaluations. The Sixth Circuit in EEOC v. AutoZone, Inc. , however, held that the alleged harasser, a store manager, was not the supervisor of his harassment victims, who were employees at the store he managed. Though the harasser could initiate disciplinary proceedings, hire hourly employees, and make recommendations to the district manager concerning employees' demotions or promotions, the court held he was not the victims' supervisor under Vance because he did not have the authority to "fire, demote, promote, or transfer any employees." With respect to delegated authority, the court concluded that this was not a case in which the employer had delegated the power to take tangible employment actions by relying on the harasser's recommendations, because the harasser's "ability to influence [the decisionmaker] does not suffice to turn [him] into his victims' supervisor." In so concluding, the court stated that the employer had "not blindly delegate[d] his responsibilities to [the harasser] or 'merely signed the paperwork'" on the harasser's recommendations. Moreover, though there was evidence that the harasser could hire hourly employees, the court concluded that this was immaterial to the analysis of whether he constituted the victims' supervisor, as he "could not and did not hire the employees he harassed, and that's what matters under Vance ."

In addition, at least one court of appeals has held that a harasser amounted to a supervisor under Vance , despite the absence of authority to take actions such as firing, because the individual had the authority to make decisions affecting an employee's pay and hours. Another circuit has recognized "apparent" authority—that is, employees, including the plaintiff, reasonably believing that the harasser was a supervisor—as a basis under its own precedent for attaching supervisory status to the harasser for Title VII harassment purposes.

Other Sexual Harassment Prohibited Under Title VII

Quid Pro Quo Harassment

Though Title VII sexual harassment claims are often raised as "hostile work environment" claims, a Title VII violation can also be established with evidence of quid pro quo harassment —that is, evidence that a supervisor took a "tangible employment action" against an employee (such as firing the employee or denying her a promotion) for refusing to submit to the supervisor's sexual demands. Though some federal courts of appeals require a plaintiff to show a tangible employment action resulting from his or her refusal to submit to demands for sexual conduct, other circuit courts have described the requisite evidence for establishing a quid pro quo claim as either evidence of a tangible employment action or that an employee's submission to unwelcome advances was an express or implied condition for receiving job benefits.

If evidence shows that a tangible employment action occurred, a plaintiff need not also establish that the harassment was sufficiently "severe or pervasive" to alter the conditions of her employment; in other words, the legal standard applied to hostile work environment claims does not apply to quid pro quo claims. As the Supreme Court explained in Ellerth , the tangible employment action resulting from an employee's refusal to submit to a supervisor's sexual demands itself explicitly alters the terms and conditions of the plaintiff's employment. Relatedly, in light of the Supreme Court's Faragher and Ellerth decisions holding that an employer is strictly liable for supervisory harassment that results in a tangible employment action, federal courts generally hold that an employer is strictly liable for quid pro quo harassment. In the absence of evidence of a tangible employment action, however, courts will analyze the claim as alleging a "hostile work environment," and will thus, in that analysis, require a showing that the harassment was "severe or pervasive" enough to constitute a Title VII violation.

Though quid pro quo cases often involve factual allegations that a supervisor took a tangible employment action to punish an employee for refu sing to engage in sexual conduct, at least two federal courts of appeals—the Second and Ninth Circuit Courts of Appeals—have expressly held that when a supervisor implicitly or expressly communicates that an employee's submission to sexual conduct is a necessary condition for continued employment, and a plaintiff submits to such requests, that supervisor's conduct constitutes a tangible employment action and triggers an employer's strict liability for that harassment.

The Second Circuit reached the issue in Jin v. Metropolitan Life Insurance Co ., a case involving trial evidence that the plaintiff's supervisor required her to come to his locked office once a week, forced her to perform sexual acts at these meetings, and repeatedly threatened to fire her if she did not submit to the acts. Stating that a tangible employment action occurs when a harasser uses the plaintiff's submission to sexual acts as the basis for her continued employment, the court explained that the harasser's use of supervisory authority to require the plaintiff's submission was attributable to the employer for liability purposes because the harasser "brought 'the official power of the enterprise to bear' on [the plaintiff] by explicitly threatening to fire her if she did not submit and then allowing her to retain her job based on her submission." The court concluded that holding an employer strictly liable "when a supervisor bases decisions affecting the terms and conditions of a subordinate's employment on the submission to sexual demands" was consistent with the Supreme Court's Faragher and Ellerth decisions.

The Supreme Court has not addressed this issue. Other courts of appeals have noted the possibility of such submission-based quid pro quo claims under Title VII, but without expressly holding that such claims are cognizable or whether an employer would be strictly liable for such conduct by a supervisor.

Constructive Discharge

Rather than firing an employee, employers may compel employees to resign, for example, by creating intolerable working conditions. This scenario is generally referred to as a "constructive discharge." In its 2004 decision Pennsylvania State Police v. Suders , the Supreme Court recognized the viability of a constructive discharge claim under Title VII in a case involving a female former employee who sued her employer, the state police, and alleged sexual harassment by her supervisors so intolerable that she was forced to resign. The allegations in Suders included that the plaintiff's supervisors brought up inappropriate subjects, routinely grabbed their genitals, belittled and intimidated her, and had her wrongly arrested for the theft of a set of job-required examinations. The questions presented to the Supreme Court were (1) whether the plaintiff could bring a claim for constructive discharge in the first instance; and (2) if constructive discharge was a viable Title VII claim, whether a defendant could raise the Ellerth/Faragher affirmative defense.

On the first question, the Court held that constructive discharge in sexual harassment cases was a valid claim, and could be characterized as an "aggravated case" of sexual harassment or a hostile work environment. A plaintiff bringing a constructive discharge claim must "show working conditions so intolerable that a reasonable person would have felt compelled to resign." The claim is of the "same genre" as hostile work environment claims generally, but is a "'worse case' harassment scenario, harassment ratcheted up to the breaking point." As with the "severe or pervasive" standard, the application of this standard depends on the facts of each case. The Court held that the plaintiff in Suders had presented sufficient evidence to raise genuine issues of material facts on her claim of constructive discharge.

Federal courts, applying Suders , generally agree that the conduct must be worse than that which would suffice to show "severe or pervasive" harassment. In other words, if a plaintiff cannot show actionable harassment, the plaintiff's constructive discharge claim must fail as well. Relatedly, it is possible to establish "severe or pervasive" harassment without reaching the level necessary to show a constructive discharge.

The second question before the Court in Suders was whether an employer could ever raise the Faragher-Ellerth affirmative defense to a constructive discharge claim. Drawing from the reasoning of its Faragher and Ellerth decisions, the Court concluded that the availability of the defense turns on whether any "official act" underlay the constructive discharge. An employer cannot avail itself of the defense, the Court held, "if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions."

This conclusion, however, opened the door to a new question: When is a constructive discharge the result of an "official act"? In addition to defining an "official act" as "an employer-sanctioned adverse action officially changing [the plaintiff's] employment status or situation," the Court discussed two lower court examples to illustrate the concept. First, the Court cited Reed v. MBNA Marketing Systems, Inc. , a case wherein the plaintiff raised a constructive discharge claim based on a supervisor's sexual comments and sexual assault. The Court agreed with the First Circuit that there was no "official act" here; the supervisor's conduct was "exceedingly unofficial and involved no direct exercise of company authority." As a result, the defendant could raise the affirmative defense. By way of contrast, the Court also discussed Robinson v. Sappington . In that case, after the plaintiff complained about sexual harassment by a judge for whom she worked, the presiding judge had her transferred to another judge who did not want her on staff. The Court agreed with the Seventh Circuit that this "official act" of transferring the plaintiff precluded the defendant from raising the Faragher - Ellerth defense.

Since Suders , lower courts have construed an "official act" to require a showing that some supervisor made a formal change in the employee's status. In Whitten v. Fred's, Inc. , for example, the Fourth Circuit addressed a sexual harassment claim in which the plaintiff's direct supervisor had, over the course of two days, repeatedly called her names, threatened her, pressed his genitals against her back as he walked by, and ordered her to stay late and clean the store in retaliation for her complaints. After she complained to her supervisor's supervisor, he told her that she was overreacting and she should continue as if nothing had happened. The Fourth Circuit concluded that neither the actions of the plaintiff's supervisor nor the supervisor's supervisor amounted to an "official act." The only action on the part of the supervisor's supervisor was a failure-to-act—he "did nothing to change [the plaintiff's] employment status."

With respect to damages available to a plaintiff who prevails on a constructive discharge claim, the Court stated in Suders that "a prevailing constructive discharge plaintiff is entitled to all damages available for formal discharge. The plaintiff may recover post-resignation damages, including both backpay, and in fitting circumstances, frontpay."

Same Sex Harassment

Not every claim of workplace harassment is cognizable under Title VII. As harassment claims arise out of Title VII's antidiscrimination provision, harassment under Title VII must be "because of [an] individual's race, color, religion, sex, or national origin." Plaintiffs can therefore occasionally face a challenge to show that an offered instance of harassment was "because of" the plaintiff's protected characteristic. This situation is especially frequent in cases where the harasser and the victim share the same sex. In its 1998 decision Oncale v. Sundowner Offshore Services, Inc. , the Supreme Court held that Title VII claims alleging harassment by a member of the same sex are viable so long as the evidence shows that such harassment "meets the statutory requirements" —that is, that the harassment occurred "because of [an] individual's race, color, religion, sex, or national origin."

In Oncale , the Supreme Court addressed a hostile work environment claim brought by a male plaintiff, a member of an all-male oil rig crew, who alleged harassment by his co-worker and two supervisory personnel. The defendants and amici argued that harassment between members of the same sex should be excluded categorically from Title VII liability, on the theory that recognizing liability for same-sex harassment would "transform Title VII into a general civility code for the American workplace." The Court disagreed, concluding that the text of Title VII mandated liability where discrimination was "because of . . . sex," and held that "nothing in Title VII necessarily bars a claim of [sex discrimination] merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex." As the Court stated, "[t]he critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed."

Although the Court recognized the viability of Title VII claims alleging same-sex harassment in Oncale , it stated that such cases face a distinctive challenge: the plaintiff must provide evidence that the harassment occurred because of the plaintiff's sex. In the typical sexual harassment case, the Court explained there is little difficulty in proving that the harassment took place "because of [an] individual's . . . sex" because "the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex." In same-sex harassment claims, the Court suggested three "routes" by which a plaintiff could prove that the harassing conduct was because of the plaintiff's sex: (1) "credible evidence" that the harasser was homosexual or motivated by sexual desire; (2) evidence that the harasser used "sex-specific and derogatory terms" reflecting the harasser's general hostility toward individuals of a particular sex; or (3) comparative evidence about how a harasser treats members of both sexes to show a hostility toward one sex or the other. Lower courts have generally held that the three methods suggested in Oncale are not exclusive, allowing plaintiffs some flexibility in showing that harassment was because of sex.

The Court in Oncale further explained that, much like the analysis of whether harassment is objectively "severe or pervasive," evaluating whether same-sex harassment occurred because of the plaintiff's sex turns on a "careful consideration of the social context in which particular behavior occurs." As the "real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships," the Court stated that "[c]ommon sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive."

The Oncale routes provide important guidelines to lower courts, despite being non-exclusive. The first and the third evidentiary routes suggested in Oncale appear to be the most common routes pursued by plaintiffs seeking to establish that same-sex harassment occurred because of the victim's sex. One commentator, looking at 105 different same-sex harassment cases, found that 40 used the first evidentiary route, while 25 utilized the third route. In four cases, the plaintiff relied on the second, "general hostility" route, and this scholar was unable to identify a single case that obtained a trial verdict under this route, likely because plaintiffs who might otherwise use this route instead rely on evidence of differential treatment.

Some cases help show how these evidentiary routes are applied in practice. For example, in Cherry v. Shaw Coastal , the Fifth Circuit addressed a case involving the first Oncale route—evidence of homosexuality or sexual desire—in which the plaintiff, a male employee, alleged that he was subjected to a series of harassing comments and behavior from his supervisor, including receiving text messages evidencing suggesting sexual attraction, as well as being inappropriately touched. In these circumstances, the court found "more than sufficient evidence to support the conclusion" that the supervisor's conduct was "sexual in nature." The third Oncale route—evidence that the harasser treated members of one sex differently from another—was at issue in Chavez v. Thomas & Betts Co rp . , where the Tenth Circuit affirmed a jury verdict finding actionable sexual harassment. In that case, the plaintiff, a woman, alleged that her female supervisor had harassed her by "target[ing] her as a woman and repeatedly humiliat[ing] her in front of men in the workplace" by making humiliating comments about her "body parts" and exposing her underwear to her co-workers, without engaging in any similarly abusive conduct toward men in the workplace. The court concluded that this differential treatment was enough for a reasonable jury to conclude that the plaintiff was harassed because of her sex.

Difficulty may arise, however, when the plaintiff's evidence does not clearly demonstrate either sexual desire or differential treatment, though the harassment is nonetheless sexualized in nature. In one such case, the Sixth Circuit affirmed the grant of summary judgment for the defendant where the plaintiff, a woman, alleged that her female supervisor called herself the "bitch in charge," exposed her breasts, made a vulgar comment and gesture toward the plaintiff's breasts, and repeatedly suggested that the plaintiff did not wear underwear. While the court acknowledged that the conduct was "unacceptable in a work environment," it concluded that the plaintiff had failed to show that the conduct was motivated by her sex, either in terms of the supervisor's general hostility toward women or the supervisor's sexual desire. Courts have distinguished between sexualized bullying by members of the same sex—which has been held to be insufficient for showing actionable harassment under Title VII—and harassment "because of" sex. Nonetheless, the line between these two remains unclear.

Some same-sex harassment cases, beyond using the routes suggested in Oncale , have succeeded by showing that the plaintiff was harassed for failing to conform to gender stereotypes. In Price Waterhouse v. Hopkins , a case involving a woman who argued that she was denied partnership at Price Waterhouse because she was insufficiently feminine, the Supreme Court, in a plurality opinion that has generally been accepted by lower courts, held that sex discrimination under Title VII could occur when an employer discriminates on the basis of the employee's failure to fit within a sex-based stereotype. Combining the reasoning of that case with Oncale , some courts have concluded that harassment on the basis of sex can occur where the plaintiff can show that the harassment resulted from a failure to conform to sex-based stereotypes. For example, in EEOC v. Boh Bros. Constr. Co., LLC , a same-sex harassment case involving a male supervisor and a male plaintiff at a construction site, the Fifth Circuit held that the evidence was sufficient to demonstrate that the alleged harassment was because of the victim's "sex," based on the plaintiff's non-conformity to male sex stereotypes. There, the plaintiff provided evidence that the supervisor thought the victim was not a "manly-enough man" and that he used a number of feminine sex-based epithets to refer to the plaintiff. While such sex-stereotyping claims may involve facts that could form the basis for claims of discrimination or harassment based on sexual orientation, courts are divided on whether sexual orientation discrimination per se is protected under Title VII as "discrimination on the basis of sex." Nonetheless, courts that do not recognize sexual orientation discrimination under Title VII may permit such claims to proceed when the plaintiff shows sex-stereotyping as the basis for the harassment.

Sexual Harassment and Retaliation Under Title VII

Title VII's anti-retaliation provision makes it unlawful for an employer to discriminate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." In other words, an employer may not retaliate against an employee because he or she reported an employment practice made unlawful by Title VII. Because federal courts interpret Title VII to prohibit sexual harassment, employees who report such harassment in the workplace may be protected from unlawful retaliation—such as termination or demotion—for making that report.

To establish a Title VII retaliation claim, a plaintiff must show, as an initial matter, that she engaged in "protected activity," such as reporting discriminatory conduct to a manager or human resources office —often categorized as protected opposition —and/or filing an EEOC charge or participating in a Title VII proceeding, often categorized as protected participation .

Reporting Sexual Harassment

When a plaintiff's report of sexual harassment takes the form of protected opposition , federal courts of appeals also require that the plaintiff show a "good faith" or objectively "reasonable" belief that the conduct she reported was unlawful under Title VII for that opposition to constitute protected activity. Sometimes referred to as the "reasonable belief" standard, courts will dismiss retaliation claims on the basis that the employee was unreasonable for believing the conduct she reported was harassment in the first instance, even if evidence reflects that the plaintiff was fired shortly after making that report. Courts have applied this "reasonable belief" test to a range of reports concerning harassment, including when an employee reports being the victim of harassment, when an employee reports observing harassment toward another employee, and when an employee supports another employee in reporting sexual harassment.

Reasonableness in Reporting Harassment

In determining whether the plaintiff was reasonable, federal courts often cite the "severe or pervasive" standard that applies to a Title VII hostile work environment claim to evaluate whether the harassing conduct the plaintiff reported was "close enough" to an actual Title VII violation to show the plaintiff's reasonableness in reporting that conduct. Thus, a court's "reasonableness" determination in a Title VII retaliation claim can rely significantly on its precedent dictating what type of conduct it has held to be sufficiently "severe or pervasive" to constitute sexual harassment in a Title VII discrimination claim.

In one Title VII retaliation case, for example, the Seventh Circuit held that the plaintiff was objectively reasonable in believing the conduct she reported to her supervisor was harassment, when she reported that her male co-worker, unwelcome and unsolicited, sat on her lap and whispered into her ear about her appearance. The court explained that its hostile work environment precedent "has often recognized in the past that unwanted physical contact falls on the more severe side for purposes of sexual harassment," that the reported conduct was "the type of occurrence that, if it happened often enough, could constitute sexual harassment," and that the plaintiff was thus reasonable in believing that conduct to be unlawful.

By contrast, the Eleventh Circuit held that evidence did not show that the plaintiff was objectively reasonable in believing the conduct she experienced was unlawful harassment. In this instance, her supervisor commented on her breasts and breast size on more than one occasion, including laughing as he told her "'you just look like you're going to burst'" out of a new shirt she was wearing, and telling her that there were no aprons big enough to accommodate her breasts. The court concluded that "the conduct [plaintiff] described is insufficient to support an objectively reasonable belief that [her manager] was engaging in an unlawful employment practice," and appeared to view the conduct as "simple teasing."

Clark County School District v. Breeden

When a court characterizes the reported harassing conduct as a "single incident," such retaliation claims may be particularly vulnerable to dismissal. In those analyses, courts often cite to the Supreme Court's 2001 per curiam decision in Clark County School District v. Breeden to support its holdings, characterizing Breeden as "holding that a plaintiff did not engage in protected activity because 'no reasonable person could have believed that' a single, non-serious incident 'violated Title VII's standard.'"

In Breeden , the Court addressed a Title VII retaliation claim and held that the conduct the plaintiff reported did not show objective reasonableness. There, the plaintiff met with her male co-worker and male supervisor to review the psychological evaluation reports of several job applicants. One job applicant had written that he had once said to a co-worker, "'I hear making love to you is like making love to the Grand Canyon.'" The plaintiff's supervisor read the comment out loud and told the plaintiff he did not know what the comment meant, to which the plaintiff's male co-worker responded by saying he would explain it later, and both men chuckled.

In holding that the plaintiff was not objectively reasonable in believing this exchange to be unlawful harassment, the Court explained that the plaintiff's job "required her to review the sexually explicit statement in the course of screening job applicants," cited the district court record reflecting that the plaintiff was not bothered or upset by reading the statement in the file, and stated that the supervisor's question about the statement and the co-worker's response about the statement were, "at worst an 'isolated inciden[t]' that cannot remotely be considered 'extremely serious,' as our cases require." In that context, the Court stated that "[n]o reasonable person could have believed that the single incident recounted above violated Title VII's standard." Importantly, though the Court analyzed a plaintiff's objective reasonableness in Breeden , the Court did not "rule on the propriety" of the reasonable belief test itself.

Though some courts of appeals have construed Breeden to render a complaint of an "isolated incident" objectively unreasonable, other courts of appeals have held that a plaintiff's objective reasonableness can be established by the reporting of an "isolated incident" if the incident concerns humiliating or physically threatening conduct, or instead have focused the analysis on the circumstances and context of the plaintiff's report rather than the number of incidents that were reported. In Montell v. Diversified Clinical Services, Inc ., for example, the Sixth Circuit rejected the defendant's argument that the plaintiff could not have reasonably believed that her supervisor's "few comments" could be unlawful sexual harassment. Stating that that "argument [could] be quickly dispatched," the court explained that the plaintiff could have had an objectively reasonable belief that her supervisor was engaging in unlawful sexual harassment when she reported to the human resources department that he told her he was turned on by a woman in a red dress and heels, while the plaintiff was wearing a red dress and heels. The court reasoned that the comment was sexual in nature and came from a supervisor directed at his subordinate, and noted that the supervisor had prefaced his comment by telling her she could get him in trouble with the human resources department for making the comment. The court concluded that the evidence was sufficient to show she could have had an objectively reasonable belief, and that whether she did in fact have such a belief, "a question of credibility, must be left to a jury."

Reporting Harassment in an Employer's Internal Investigation

As previously discussed, Title VII's anti-retaliation provision has two clauses, often referred to as the "opposition" and "participation" clauses. Significantly, a number of federal courts of appeals, when interpreting the participation clause of Title VII's anti-retaliation provision, have held that an employee's participation in an employer's internal investigation does not constitute protected activity under that clause. Though the Supreme Court has not addressed whether an employee's disclosures in an internal harassment investigation constitute protected participation under Title VII, the Court has expressly held that an employee's report of sexual harassment made in the context of an employer's internal investigation may constitute protected opposition .

Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee

The Supreme Court, in its 2009 decision Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee , held that an employee who reports "discrimination not on her own initiative, but in answering questions during an employer's internal investigation," may be protected under the opposition clause of Title VII's anti-retaliation provision. In that case, the Court addressed a Title VII retaliation claim in which the plaintiff claimed she was fired in retaliation for reporting harassment in the course of her employer's internal investigation into allegations about a male manager. The plaintiff—in response to questions from a human resources officer about whether she had ever witnessed "'inappropriate behavior'" by the male manager—described several instances of his sexually harassing behavior, including that he would "grab[] his crotch" when speaking to her, repeatedly "'put his crotch up to [her] window," and on one occasion, came into her office and pulled her head towards his crotch.

In holding that the plaintiff's responses to her employer's inquiry constituted protected opposition, the Supreme Court discussed dictionary definitions of the term "opposed" in the absence of a definition in the statute. The Court explained that the term means to "resist or antagonize," among other meanings, and that opposition can also entail taking a stand against a practice in other ways besides "'instigating'" action. In light of the various definitions of "oppose," the Court concluded that the plaintiff's report of harassing behavior was opposition "if for no other reason than the point argued by the Government and explained by an EEOC guideline: 'When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication' virtually always 'constitutes the employee's opposition to the activity.'" Though there may be exceptions, the Court stated, such as an employee's description of a supervisor's racist joke as hilarious, such reports "will be eccentric cases, and this is not one of them."

The Court further reasoned that nothing in the statute requires "a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question." Moreover, the Court observed that "[i]f it were clear law that an employee who reported discrimination in answering an employer's questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others."

Finally, the Court described the "catch-22" that would result in holding otherwise: "[i]f the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability" by asserting the Faragher-Ellerth affirmative defense and arguing that "'the plaintiff employee unreasonably failed to take advantage of . . . preventive or corrective opportunities provided by the employer.'" The Court stated, "[n]othing in the statute's text or our precedent supports this catch-22. "

When Harassment May Constitute Unlawful Retaliation

Another intersection between harassment law and Title VII's anti-retaliation provision concerns situations in which a plaintiff reports a potential Title VII violation, and the employer retaliates against the employee in the form of harassment—that is, retaliatory harassment. As discussed in further detail below, there is disagreement among circuit courts regarding how to analyze such claims—more specifically, whether the "severe or pervasive" standard in Harris has any applicability to retaliatory harassment claims, though the Supreme Court decision in Burlington Northern v. White generally controls Title VII retaliation analyses.

Burlington Northern v. White

The Supreme Court decided Burlington Northern v. White in 2006 and set the legal standard for evaluating actionable retaliation. Leading up to Burlington Northern , circuit courts had varying requirements concerning the type of conduct that could constitute a violation of Title VII's anti-retaliation provision, with some circuits requiring that retaliation had to take the form of an employer's decision to demote or fire the employee to constitute a violation, while others did not limit actionable retaliation to such "ultimate" employment decisions. Addressing this issue, the Court expressly rejected the interpretation limiting actionable retaliation to only "workplace-related or employment-related retaliatory acts and harm," and instead held that actionable retaliation is conduct that "could well dissuade a reasonable worker from making or supporting a charge of discrimination." Following Burlington Northern , circuit courts apply that standard to a wide variety of alleged retaliation, though some courts are applying Harris to claims alleging retaliatory harassment, as explained in further detail below.

In formulating the retaliation standard, the Court in Burlington Northern emphasized differences in the language and purpose of Title VII's antidiscrimination and anti-retaliation provisions, stressing that they prohibit different types of conduct to achieve different ends. The purpose of the antidiscrimination provision, the Court explained, is to ensure that individuals are not discriminated against in the workplace because of their racial, ethnic, religious, or gender-based status. Consistent with that purpose, the Court pointed to the statutory text of that provision limiting actionable discrimination to actions that affect employment, by use of terms such as "hire," "discharge," "compensation," and other employment-related language in describing the prohibited forms of discrimination.

By contrast, the Court observed, the anti-retaliation provision contains "[n]o such limiting words," and interpreted this difference in statutory language to be intentional. The Court also observed that the purpose of the anti-retaliation provision—that is, preventing an employer from interfering (through retaliation) with an employee's efforts to report unlawful conduct under Title VII—could not be achieved if actionable retaliation was limited only to "employer actions and harm that concern employment and the workplace." Such a limited construction, the Court stated, "would not deter the many forms that effective retaliation can take." Rather, interpreting the provision "to provide broad protection from retaliation helps ensure the cooperation upon which accomplishment of the Act's primary objective depends." The Court concluded, based on the textual differences and the distinct purposes of the provisions, that the scope of the anti-retaliation provision "extends beyond workplace-related or employment-related retaliatory acts and harm."

Applying this standard to the facts in Burlington Northern , the Court held that the evidence was sufficient to support the jury verdict in favor of the plaintiff, Sheila White. White had alleged that the company reassigned and then suspended her in retaliation for her report to Burlington officials about her supervisor's repeated and negative comments about women. After White reported the comments, Burlington reassigned her from forklift duty, which was considered a "less arduous and cleaner job" than that of a track laborer, and assigned her to perform only track laborer work. When White filed an EEOC charge alleging that this reassignment was in retaliation for her report, Burlington suspended her without pay a few days thereafter, ultimately reinstating her and paying back wages for the 37-day suspension. In White's Title VII action, she alleged that both acts violated the statute's anti-retaliation provision.

With respect to the reassignment, the Court concluded that the evidence was sufficient to satisfy its standard, explaining that while not every reassignment will constitute actionable retaliation, because the track laborer job was more arduous, and the forklift position required more qualifications and was considered an indication of prestige, this particular reassignment constituted actionable retaliation. The Court observed that "[c]ommon sense suggests that one good way to discourage an employee such as White from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties and less time performing those that are easier or more agreeable."

Concerning the 37-day suspension, the Court similarly concluded that—even though White was repaid for her lost wages upon her reinstatement—the suspension constituted actionable retaliation, stating that White and her family had no way of knowing whether she would return to work and went 37 days without income, and that such an indefinite suspension without pay "could well act as a deterrent [to reporting a Title VII violation], even if the suspended employee eventually received backpay." The Court emphasized that in applying this standard, "[c]ontext matters" because "the significance of any given act of retaliation will often depend upon the particular circumstances."

Whether Burlington Northern Applies to Retaliatory Harassment Claims

Circuit courts, in analyzing Title VII claims alleging retaliatory harassment for reporting a potential Title VII violation, have applied varying—and at times directly competing—standards. Though there is limited circuit authority expressly addressing the correct standard to apply in retaliatory harassment claims, circuits have staked ground in at least two contrary positions: application of Burlington Northern to determine whether the harassing conduct is actionable (i.e., conduct that would dissuade a reasonable person from making or reporting a claim of discrimination) or application of Harris to require that the retaliatory harassment be severe or pervasive enough to create a hostile work environment to constitute actionable retaliation. Given that Burlington Northern applies to the analysis of Title VII retaliation claims, it is unclear on what legal basis courts are applying Harris to claims alleging retaliatory harassment, though at least one circuit court has noted it sees no reason to analyze harassment motivated by retaliation any differently from harassment based on a protected characteristic (such as sex).

The Third Circuit has expressly held that in light of Burlington Northern , a plaintiff alleging a claim of retaliatory harassment need not establish that the harassment was severe or pervasive to be actionable. The court explained that while it had formerly required a showing of "severe or pervasive" retaliatory harassment, it had since clarified that following Burlington Northern , "such claims may go forward upon a showing by the plaintiff that 'a reasonable employee would have found the alleged retaliatory actions materially adverse.'" The court explained "materially adverse" to mean an action that "'well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Under this "less-demanding standard," the court found that the alleged retaliatory harassment—including poor treatment following the plaintiff's complaint such as yelling at her and refusing to provide her resources to help in her work—would allow a reasonable jury to conclude that "such treatment would deter a reasonable employee from exercising her rights."

The Second Circuit has also applied Burlington Northern to evaluate whether alleged harassment against a plaintiff, in retaliation for filing a discrimination complaint, amounted to actionable retaliation by asking whether those acts would dissuade a reasonable employee from making or supporting a discrimination complaint. The Eleventh Circuit, however, continues to analyze a retaliatory harassment claim to require evidence that the retaliatory conduct was sufficiently severe or pervasive to create a hostile work environment, for the purpose of showing a violation of the anti - retaliation provision. The court has explained that its pre- Burlington Northern precedent requires a showing of retaliatory harassment "that is sufficiently severe or pervasive to alter the conditions" of the workplace or create an abusive working environment, and expressly stated that retaliatory harassment must meet the standard in Harris , not Burlington Northern .

The Fourth, Sixth, and Ninth Circuits also appear to require a showing of severe or pervasive harassment for that conduct to constitute actionable retaliation, but with limited or no discussion of the import of Burlington Northern . That is despite these courts' application of Burlington Northern to other types of alleged retaliation.

To the extent that other circuits have reached the analysis of Title VII retaliatory harassment claims, it is unclear what standard these courts are applying, with some analyses reflecting blended language referring to both Harris (severity) and Burlington Northern (dissuade a reasonable employee). The Seventh Circuit, for example, recently addressed a retaliatory harassment claim and stated that the claim failed in the absence of evidence that the alleged retaliation "was severe enough to dissuade a reasonable employee from exercising his Title VII rights." Meanwhile, the D.C. Circuit has analyzed a retaliatory harassment claim to conclude that the harassing acts would not have dissuaded a reasonable employee from reporting discrimination, but then cited Harris to note that even if the plaintiff experienced the harassment as harmful, "the standard for severity or pervasiveness is nonetheless an objective one."

As reflected above, there is considerable disagreement among courts as to how to analyze retaliatory harassment claims. Certainly, whether a court elects to apply Harris or Burlington Northern has significant consequence: the retaliatory conduct under Harris would have to be severe or pervasive to constitute actionable retaliation, a more demanding standard to meet than that articulated in Burlington Northern .

Remedies Under Title VII

The Civil Rights Act of 1991 permits a plaintiff to recover compensatory damages in any case of intentional discrimination, including sexual harassment. Compensatory damages can include the sum of "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses." A plaintiff may also recover punitive damages against nongovernmental entities upon a showing of "malice or reckless indifference to the federally protected rights" of the complainant. The total amount of combined compensatory and punitive damages that a plaintiff can recover is limited by statute. For employers with more than 14 but fewer than 101 employees, a plaintiff's maximum damages are limited to $50,000; for 201 employees, $100,000; for 501 employees, $200,000; for employers with more than 500 employees damages are capped at $300,000. A complainant who was constructively discharged may also be eligible for awards of backpay or frontpay.

In addition to damages, a Title VII sexual harassment plaintiff may also seek injunctive relief. As a general matter, "[a] district court has broad discretionary powers to craft an injunction to the specific violations found to ensure that the employer complies with the law." By way of example, in EEOC v. Wilson Metal Casket , the Sixth Circuit upheld an injunction which prohibited the harassing supervisor from "asking any female employee to accompany him off the premises of the Company unless accompanied by at least one other employee, and kissing or placing his hands on any female employee in the work place." The court upheld this injunction even though none of the enjoined conduct was itself, standing alone, likely illegal; the court noted that the injunction "appropriately enjoins conduct which allowed sexual harassment to occur."

Finally, reasonable attorney's fees are available to a prevailing party, either a plaintiff or a defendant, under Title VII. Prevailing plaintiffs generally recover fees unless there are special circumstances that preclude such recovery. A prevailing plaintiff is one who obtains relief which "materially alters the legal relationship between the parties"; for example, the appropriate attorney fee when a plaintiff receives an award limited to nominal ($1) damages is generally "no fee at all." Defendants who prevail are entitled to fees only if the plaintiff's claim was frivolous, unreasonable, or groundless.