By Slade, David C.
The World and I , Vol. 13, No. 10
With the scourge of sexual harassment still prevalent in the workplace and schools, many victims are fighting back through the courts. Because the sexual harasser (or predator, in the case of molesting schoolchildren) usually has a low income, victims are beginning to go after the "deep pocket" employers, who are ultimately responsible for the workplace or school environment.
Last March the Supreme Court heard two sexual harassment cases where the victims sued not only the harasser but also the employer-a city in one case and a school district in the other (see THE WORLD & I, May 1998). In both cases, the employer had no knowledge of the ongoing sexual harassment. Can the employer nonetheless still be "vicariously" liable for the unknown acts of its supervisors?
Yes, the Court ruled in one case and no in the other. The difference between the outcomes lies in the legal framework surrounding each case. The city of Boca Raton case was brought under Title VII of the Civil Rights Act of 1964, while the Lago Vista Independent School District case was brought under Title IX of the Education Amendments Act of 1972. Both laws were intended to stamp out harassment and discrimination, but Congress used slightly differing terms in drafting them.
Title VII of the Civil Rights Act makes it illegal to discriminate against any individual on the basis of "race, color, religion, sex, or national origin." In these Title VII cases, the Supreme Court has ruled that there are two types of sexual harassment: the "quid pro quo" type, where typically a male supervisor demands sex of a female employee in return for her job security or promotion, and the "hostile working environment," where, although an employee's job security or promotion is not threatened, the atmosphere of the working environment is so hostile or degrading that it amounts to harassment. The city of Boca Raton case is a "hostile working environment" case.
In Faragher v. City of Boca Raton, Florida, Beth Ann Faragher worked as a lifeguard. On the job, her immediate male supervisors subjected her to "uninvited and offensive touching, offensive comments and gestures," although they never threatened her job or promotions. The city did have a written sexual harassment policy but never distributed it to the lifeguards. Not knowing about the policy, Faragher reported the problem to the supervisor of her supervisors. He took no action on the complaint, however, nor did he report the complaint to any city official. Faragher eventually sued the city of Boca Raton as well as her two supervisors for violation of Title VII of the Civil Rights Act.
The Federal District Court held that the city was "vicariously" liable for the male supervisors' actions because, under "agency" principles, the city controlled the supervisory authority and overall workplace environment. On appeal, the 11th U.S. Circuit Court of Appeals reversed, holding that the city was not "vicariously" liable because neither supervisor was acting within the scope of his employment when the harassment took place. Further, the city was not directly liable because it neither knew nor should have known about the harassment.
The Supreme Court reversed, rejecting the "scope of employment" reasoning of the lower appeals court for the simple reason that no job description would ever call for a supervisor to sexually harass an employee. Thus, this analysis would always result in no liability of the employer. But, in the real world, the Court goes on, sexual harassment is facilitated by the involvement of a supervisor. …