Productive Work Environment
Covers all forms of workplace harassment, including
sexual, ethnic, racial, and disability harassment
It is the policy of the Company to promote a productive work environment1 and not to tolerate verbal or physical conduct by any employee that harasses, disrupts, or interferes with another’s work performance or that creates an intimidating, offensive, or hostile environment.
(1) Employees are expected to maintain a productive work environment that is free from harassing or disruptive activity. No form of harassment12 will be tolerated, including harassment for the following reasons: race, national origin, religion, disability, pregnancy, age, military status, or sex. Special attention2 should be paid to the prohibition of sexual13 harassment.14
(2) Each supervisor and manager has a responsibility3 to keep the workplace free of any form of harassment, and in particular, sexual harassment. No supervisor or manager is to threaten or insinuate, either explicitly or implicitly, that an employee’s refusal or willingness to submit to sexual advances will affect the employee’s terms or conditions of employment.15
(3) Other sexually harassing or offensive conduct in the workplace, whether committed by supervisors, managers,16 nonsupervisory employees,17 or nonemployees,18 is also prohibited.19 This conduct includes:
(a) Unwanted physical contact or conduct of any kind, including sexual flirtations, touching, advances, or propositions;
(b) Verbal harassment of a sexual nature, such as lewd comments, sexual jokes or references, and offensive personal references;
(c) Demeaning, insulting, intimidating, or sexually suggestive comments about an individual;
(d) The display in the workplace of demeaning, insulting, intimidating, or sexually suggestive objects, pictures, or photographs;21
(e) Demeaning, insulting, intimidating, or sexually suggestive written, recorded, or electronically transmitted messages (such as email, instant messaging, and Internet materials).4
Any of the above conduct, or other offensive conduct, directed at individuals because of their race, sex, national origin, religion, disability, pregnancy, age, or military status is also prohibited.
(4) Any employee who believes that a supervisor’s, manager’s, other employee’s, or nonemployee’s5 actions or words constitute unwelcome harassment has a responsibility to report or complain about the situation as soon as possible. The report or complaint6 should be made to the employee’s supervisor; or to the department head or Human Resources Manager if the complaint involves the supervisor or manager.
(5) Complaints of harassment will be handled and investigated7 under the Company’s dispute resolution policy (see Dispute Resolution Procedure, Chapter 904), unless special procedures are considered appropriate. All complaints of harassment will be investigated promptly22 and in as impartial and confidential8 a manner as possible. Employees are required to cooperate in any investigation. A timely resolution of each complaint should be reached and communicated9 to the parties involved.
(6) Any employee, supervisor, or manager who is found to have violated the harassment policy will be subject to appropriate disciplinaryaction, up to and including termination.10 The Company prohibits any form of retaliation11 against employees for bringing bona fide complaints or providing information about harassment. (See Disciplinary Procedure, Chapter 808.)
1Productive Environment vs. Harassment: This policy is called "Productive Work Environment" (as opposed to "Sexual Harassment" or "Anti-Harassment Policy") to underscore the positive purpose behind the policy. While it specifically prohibits harassment, it also focuses on the creation and maintenance of a productive work environment in which employees are not distracted by the inappropriate behavior of coworkers, service providers, or customers. Thus, the policy title reflects the employer’s goal of a respectful workplace, rather than simply liability prevention.
Reasons for having a policy. All employers should have a harassment policy for at least two primary reasons. First, a strong and consistently enforced policy against sexual and other forms of harassment shows the employer’s commitment to and promotes a productive work environment. Harassment that goes unchecked has the very real potential to debilitate the organization’s operations through decreased morale and productivity and increased employee turnover. Second, the policy can help prevent liability. Even though a formal written policy is not legally required, court decisions and guidances from the Equal Employment Opportunity Commission ("EEOC") consistently show that employers can decrease their liability for hostile work environment harassment by maintaining and enforcing internal policies to prevent and deal with harassment. (See notes 13 and 19, below.)
What harassment should be prohibited. In the past, many employers focused only on sexual harassment since it has received the most legal and media attention. However, any form of harassment is counterproductive to an employer’s operations and is illegal under discrimination laws. Furthermore, the courts and the EEOC interpret federal civil rights laws to prohibit harassment or a work environment abusive to employees because of their race, gender, religion, national origin, age, or disability. Although the most common harassment claims involve allegations of sexual harassment, the same legal analysis applies when the illegally offensive behavior is based on any protected class. (See notes 12 and 13, below.) Accordingly, the Model Policy prohibits not only sexual harassment but also harassment based on race, sex, national origin, religion, disability, pregnancy, age, and military status. Harassment based on sex is included as a separate category from sexual harassment since many courts recognize that harassment targeted at an employee because of her gender can be illegal even if the harassment is not sexual in nature. (See note 12, below.) In addition, state laws may prohibit harassment based on additional protected classes, such as sexual orientation in California (see note 20, below).
The Model Policy also prohibits conduct that may not be considered illegal harassment by a court or agency but that can have a negative effect on the workplace. For example, using the Model Policy, an employer can take disciplinary action against employees who use obscene language or tell off-color jokes, conduct that generally would not rise to the level of illegal sexual harassment unless employees engaged in it on an ongoing basis. Since these types of behavior typically are considered inappropriate in the workplace and can demoralize employees, employers should make sure that their policies are broad enough to cover all forms of unproductive and harassing behavior.
What the policy should include. Adoption of a written policy that prohibits all forms of discriminatory harassment is an important first step in communicating the employer’s commitment to a productive work environment. The Editors recommend developing a policy that incorporates both the Model Policy and the Comments in order to explain specifically the employer’s prohibition against harassment and to help limit liability against harassment complaints. (See notes 2, 12, and 19, below.) At a minimum, the policy should include the following elements: (1) a statement prohibiting all forms of harassment in the workplace, but in particular, sexual harassment (see notes 2 and 12, below); (2) a definition of harassment, and in particular, sexual harassment (see note 13, below); (3) an explanation of what conduct is prohibited (see Comment (3), above); (4) a complaint and resolution procedure (see note 6, below); (5) the provision of disciplinary procedures against any employee who violates the policy (see note 10, below); and (6) a statement that there will be no retaliation against complaining employees and witnesses (see note 11, below).
Some employers reserve in their policies the right to discipline or terminate employees who bring false or fraudulent claims of harassment. Though employers certainly are entitled to discipline employees who knowingly or intentionally bring false claims, these types of provisions may deter employees from reporting inappropriate behavior. Furthermore, courts may find that an employer that includes such a provision in its policy has not provided its employees an effective mechanism for reporting harassment.
Implementing the policy. Even the most carefully worded and explicit policy will not prevent harassment or limit liability if the employer does not ensure that it is followed in a consistent manner. (See note 13, below.) To implement the harassment policy properly, the employer should take the following steps: (1) distribute the policy to all employees in a handbook or policy manual and post it on bulletin boards; (2) select a person (or persons) to oversee the policy who has an expertise in handling harassment complaints; (3) anticipate situations that can develop into harassment and try to prevent them (see note 3, below); (4) train supervisors and employees about how to use the policy (see note 3, below); (5) take all complaints seriously and conduct prompt investigations (see note 7, below); (6) evaluate the evidence and determine if the policy was violated (see note 9, below); (7) take appropriate remedial action if harassment occurred (see note 10, below); and (8) communicate the results to the involved parties (see note 9, below). In addition, the policy should be reviewed regularly and revised to ensure that it still meets the evolving standards of what is a legally effective harassment policy.
Consensual relationship agreements. Most employers are wary of romantic relationships between employees because they can result in a variety of problems, including workplace disruptions, decreased morale and productivity, and legal claims for sexual harassment and retaliation. However, a rule that bans employee dating altogether is probably not realistic or practically enforceable. Therefore, many employers deal with such relationships through their conflict of interest policies.
Some employers take a more aggressive approach and also use consensual relationship agreements, often called "love contracts" as a means of warding off later claims by either party that the relationship was coerced or unwelcome. In the typical love contract, each party acknowledges that the relationship is mutually consensual, agrees to adhere to the company’s harassment policy, and releases the employer from liability related to the relationship. Employers that use these agreements see them as a way to put the parties on notice of their rights and responsibilities and cause these employees to consider the relationship more carefully. However, employees are likely to resent these agreements as an invasion of their privacy, may be hesitant to waive their rights as to future harm, and later may claim they signed the agreement under pressure. Furthermore, these agreements offer employers little protection once the relationship sours since their enforceability is unclear.
About these notes. Many of the examples and cases provided in the following material on sexual harassment involve a male harasser and a female complainant. The Editors recognize that sexual harassment also may involve less traditional situations, such as harassment of males by females or same-sex harassment (see note 20, below). However, because most of the case law on sexual harassment involves the former scenario, the following information uses examples of male harassers and female complainants.
2Specific Prohibition Against Sexual Harassment: Most employers are subject to statutory and common law prohibitions against discriminatory harassment in the workplace. (See note 12, below.) Although the Model Policy provisions regarding sexual harassment also are intended to be applied to other forms of harassment (see note 1, above), the Model Policy pays particular attention to sexual harassment because it is a special form of harassment that has been closely scrutinized by the Equal Employment Opportunity Commission ("EEOC") and the courts. In its Policy Guidance on Current Issues of Sexual Harassment, the EEOC stated that an effective preventive program should include an explicit policy against sexual harassment that is communicated clearly and regularly to employees and enforced effectively. The courts also have noted that the absence of a policy against sexual harassment may be considered in determining an organization’s liability. (See note 13, below.) The notes that follow offer information on these issues.
3Training for Supervisors and Employees: To be effective, a policy against sexual and other harassment must be implemented carefully and should include training for all personnel. Having one person within the organization oversee harassment-prevention training can ensure a consistent and thorough approach to educating employees and responding to their concerns. The training should identify the types of behaviors that are offensive or prohibited and educate all employees to respond appropriately to harassing situations.
Training for all employees should include: (1) a statement that the employer condemns harassment of any kind, even if it is not explicitly prohibited by the employer’s policy or by law; (2) the definition of harassment, with particular attention paid to the legal definitions of sexual harassment (see notes 15 and 19, below); (3) a description of prohibited conduct, as is provided in the Model Policy; (4) the consequences of violating the policy against harassment, and the types of behavior that may lead to immediate termination; (5) the dispute resolution procedure for handling complaints; and (6) encouragement to report harassment and reassurance that there will not be any retaliation for complaints or reports of harassment. In addition to training, all employees should receive a copy of the written policy and any further reminders. Employers also should provide training for all new hires and for those employees who are new to management positions.
Supervisors and managers play a key role in preventing and eliminating harassment since they are in a position to identify potentially harassing behavior. Training for supervisory personnel should include an awareness of harassment, prevention of harassing behavior, and appropriate responses when an employee complains of harassment. In addition, some employers teach supervisors to anticipate situations that can develop into harassment, such as relationships between supervisors and subordinates. However, supervisors and managers also can create serious employee relations problems and liability for their employer if they engage in any form of harassment themselves. (See notes 15 and 19, below, for an explanation of liability arising from harassment by supervisors.)
A few states, such as Connecticut and Maine, also specifically require employers to provide sexual harassment training to employees. Employers should check applicable state law for these training requirements. (See note 13, below.)
4Electronic Messages: The development of electronic recording and transmittal devices, including computer disks, the Internet, electronic mail, instant messaging, voicemail, tape recordings, and video recordings, provides employees with additional ways to disseminate harassing and offensive materials. The Model Policy includes a prohibition against offensive messages transmitted by these types of media. Employees should be informed that business equipment is restricted to business use only and that any improper use of the equipment will be grounds for discipline. Because legal restrictions under the Omnibus Crime Control and Safe Streets Act and related state laws limit when employers may monitor employee conversations and other electronic transmissions, it also is prudent to inform employees that the employer reserves the right to review, monitor, and have access to any data that has been stored or transmitted. (See Use of Communication Systems, page 805:8, notes 16 and 17, for more information about monitoring employee communications.) Many organizations also restrict Internet access to Web sites that contain pornographic content, games, or other potentially offensive materials.
5Harassment by Nonemployees: Both the courts and the Equal Employment Opportunity Commission have found that an employer may be held liable for sexual harassment of its employees by someone outside of the organization, such as customers or vendors. (See note 18, below.) Unfortunately, there is little guidance as to the extent of the employer’s duty in this area. Employers that depend on the harasser’s organization for a large percentage of their business may have a particularly difficult time addressing the problem. Still, an employer has an obligation to protect its employees by investigating the complaint and by attempting to resolve the situation satisfactorily with both the employee and the alleged harasser. The employer should focus on improving the situation over which it has control, namely, the degree of contact that the complaining employee has with the outsider. However, taking the employee out of contact with the alleged harasser may be considered discriminatory if it reduces the employee’s pay or results in less favorable working conditions. Thus, the employer should discuss possible resolutions with the employee to determine an acceptable alternative before instituting any changes to the terms and conditions of employment.
6Reporting or Complaint Procedure: Employers should encourage employees through training and periodic reminders to file complaints whenever they believe the harassment policy has been violated. To be considered effective, the complaint system should include a "bypass mechanism" so that the complaining employee does not have to complain to her immediate supervisor if the supervisor is the alleged harasser or has allowed or condoned the alleged harassment. An alternative that allows employees to complain to a neutral, uninvolved party can preserve the integrity of the procedure. In addition, designating a specific person to receive complaints can protect the employer from liability. Some courts have found that employers can limit their liability for harassment they did not know about if employees do not use the provided complaint procedure or do not complain to the employers’ designated representative. (See note 13, below.) The manner in which the employer responds to complaints of sexual harassment is also an important element of an effective sexual harassment policy. An inadequate response not only disillusions the workforce but also significantly increases the likelihood that the employer will be found legally liable for the harassment. (See note 22, below, regarding the evaluation and resolution of complaints.)
The complaint or dispute resolution procedure for allegations of harassment can be incorporated into the employer’s normal grievance procedure, or it can be a separate process. (See Dispute Resolution Procedure, Chapter 904.) The use of the usual dispute resolution procedure can be the most efficient for purposes of administration, but special procedures may be needed for highly sensitive situations. At times, such as when senior management or the CEO is accused, it may be necessary to have the Board of Directors or some outside investigator, such as legal counsel, handle the complaint. (See also note 7, below.) Whatever process the employer implements, generally it is helpful to have a specially trained person oversee all sexual harassment complaints. As discussed in the following notes, harassment complaints require quick action, objectivity, thorough investigation, a timely resolution, and (to the extent possible) confidentiality throughout the process.
7Investigation Procedures: As a general rule, all complaints should be investigated, even when the complainant requests that nothing be done or when the complaint is anonymous. The investigation should be undertaken promptly and completed as expeditiously as possible for several reasons. First, the disruption caused by actual harassment or rumors can be substantial. In addition, as time passes, evidence can be lost and witnesses’ memories often become less accurate. Furthermore, the longer a resolution is delayed, the more stressful the situation becomes for the complaining employee or unjustly accused individual, leading to subsequent legal claims for emotional distress. Furthermore, case law has established that employers are liable for failing to take prompt and effective action to eliminate known hostile work environments. (See notes 19 and 22, below.) Therefore, investigations typically should be completed within a few days. The following discussion provides helpful tips for conducting effective investigations of harassment complaints.
The investigator. The supervisor or other person receiving the complaint should refer the complaint to the human resources department without delay. The human resources department should choose an investigator. Typically, the investigator should be a human resources professional who is specially trained to conduct sexual harassment investigations. This training helps assure that all important aspects of the situation are considered, including whether multiple complaints have been received about the same individual. The investigator also should understand what constitutes sexual harassment under both the employer’s policy and the law in order to evaluate the complaint properly.
Whenever possible, it can be helpful to have a person from management outside the human resources department assist in the investigation. In addition, when the allegations involve sexual or gender harassment, it is a good idea to have both a man and a woman investigate the complaint together. First, two persons can simplify the task of interviewing the witnesses, recording their answers, and making sure all areas have been thoroughly covered. Second, when two investigators (who likely bring different perspectives to the process if they are from different departments or are different genders) reach the same conclusion based upon the evidence collected, there is an increased likelihood that the conclusion will be perceived as fair and reasonable.
Outside of a business relationship, investigators should not have any involvement with the complainant or the alleged harasser. Some employers use an outside investigator or the Board of Directors if the complaint indicates that harassment is pervasive or involves top management employees. However, according to Federal Trade Commission opinion letters, if an outside party conducts the investigation, the employer may have to comply with the Fair Credit Reporting Act’s notice and consent procedures before initiating the investigation. Furthermore, a few states, like California, require outside investigators to have special licenses. Therefore, employers should check with counsel for any state specific requirements before hiring an outside investigator.
The investigation process. The process should provide a fair method for both sides to be heard and to receive information. The employer and its investigator should not prejudge the alleged harasser’s guilt. Witnesses should be interviewed as soon as possible. All responses should be documented and, if possible, statements should be written and signed by the persons providing the information. In addition, all participants in the investigation should be reminded that their cooperation and confidentiality are required, that the employer’s policy prohibits retaliation, and that any retaliation must be reported immediately should it occur. (See note 8, below.)
Interviewing involved parties. It is generally best to interview the complaining party first to ensure that all important details and witnesses are identified promptly. Investigators should be sensitive to the emotional nature of this type of investigation and should be prepared to deal with employee embarrassment and anger by patiently, but firmly, explaining that details are needed for an accurate investigation. The interview of the alleged harasser may be even more difficult because of his defensive position. Therefore, interviewers must be objective and nonjudgmental and allow the alleged harasser to respond to each allegation. The investigator also should inform him of the type of disciplinary action possible if the allegations are found to be true. Investigators should not use threats to obtain information but should explain matter-of-factly the consequences of not cooperating. Both parties should be told to avoid contact with one another, and the employer should implement measures to minimize this contact. In addition, the investigator should remind the accused and all other parties that retaliation is prohibited and encourage the complainant and any witnesses to report any further incidents of harassment or retaliation. Although the alleged harasser generally is entitled to hear the allegations against him, the investigator should tell other witnesses as little as possible about the details of the complaint and question them only on matters about which they are likely to have information. This should reduce the employer’s exposure to later claims of defamation. The investigator should recognize that there may be no eye witnesses. Thus, the employer may have to resolve a sexual harassment claim based on the credibility of the parties.
The following is a list of suggestions for interviewing the parties and witnesses:
(1) Remind the person being interviewed that retaliation for participation in the investigation is prohibited and that any retaliatory behavior should be reported immediately;
(2) Be and appear as nonjudgmental and objective as possible;
(3) Ask open-ended questions and do not suggest answers to questions;
(4) Get as much detail as possible, focusing on the specific facts of what happened when, where, and how often;
(5) Do not show outrage or dismay at any answer (this may cause interviewees to change their stories);
(6) Do not promise complete confidentiality or anonymity, or that punishment will be less severe if the employee confesses;
(7) Document as much as possible about the interview, including the person’s answers, demeanor, gestures, accuracy of memory, and overall credibility, and where possible, obtain written statements signed by the witnesses.
In cases where physical violence or sexual assault are alleged, the employer should inform both parties that reports will be made to the appropriate legal authorities.
8Confidentiality: Confidentiality should be maintained to the extent possible. Accordingly, participants in the investigation should be instructed not to discuss the subject with coworkers. In addition, witnesses should be told as little as possible about the complaint in order to prevent later charges of defamation by the alleged harasser. However, an employer should not make a blanket promise of complete confidentiality since information collected from the investigation may have to be disclosed to other members of management or legal authorities or may be needed in subsequent agency or court proceedings. At the same time, the need for confidentiality should not be expressed in a way that discourages complaining parties or witnesses from pursuing claims they are legally entitled to make. An employer may face additional liability if it attempts to keep employees from making complaints to the Equal Employment Opportunity Commission, a state agency, or the courts.
Employers may want to consider creating a system for storing investigation records separately from personnel files. In this type of system, investigative materials are stored in a "department file." The only item from the investigation kept in personnel files is any written recommendation of disciplinary action placed in the harasser’s file only. Keeping the information separated from the general personnel files prevents unnecessary disclosure of sensitive information. Employers should note, however, that the opposing side in a subsequent legal action may obtain the investigation files. For this reason, records of the investigation and resulting action should be factual and objective.
9Evaluating Evidence and Communicating the Decision: Once the investigation is completed, the employer must evaluate the evidence and decide in a timely manner whether the alleged conduct occurred and violated its policy. An employer’s policy may impose a stricter standard of conduct than is required by law, for example, by prohibiting conduct that is not actually illegal. (See note 1, above.) However, the legal definitions of harassment can be helpful in reaching a determination. (See note 13, below.)
In making a final determination, the employer should point to as many factual findings as possible to support its decision. Each reason for the decision should be documented. Often in sexual harassment complaints, however, there are no witnesses or other corroborating evidence. In this "he said, she said" scenario, the employer still can make a decision based on the credibility of the two parties involved. For example, when the same person makes contradictory statements, or one party’s story changes, the employer can weigh these inconsistencies and reach a conclusion. Employers do not have to prove that the incident did or did not occur "beyond a reasonable doubt" as a criminal court does. Rather, the decision should be based on the results of the employer’s good faith attempt to investigate and resolve the complaints.
On the other hand, sometimes the evidence is inconclusive and a factual determination cannot be made. In these cases, the employer should resist taking action against either party. Placing blame where the truth cannot be determined may result in claims of wrongful discharge, defamation, infliction of emotional distress, or retaliation. Instead, the employer should explain to both sides why the evidence was inconclusive and should give the complaining employee the opportunity to submit any additional information and appeal the decision. An appeals process lends additional fairness and impartiality to the decision. (See Dispute Resolution Procedure, Chapter 904.) In addition, the employer should remind the parties of their obligations under the harassment policy to refrain from inappropriate behavior (including retaliation) and to report policy violations.
Whether the employer’s finding is inconclusive or definite, it should communicate the decision only to those directly involved and any members of management with a legitimate need to know. Otherwise, the employer may be liable for subsequent defamation claims by the alleged harasser. Some organizations have both parties sign an agreement that they will avoid contact and that they will discuss the case only as necessary. Violations of the agreement typically result in disciplinary action, including possible termination.
10Proper Remedial Action: If the employer concludes that its harassment policy has been violated, disciplinary action should follow. In evaluating the employer’s response, courts will consider whether the action taken was reasonably calculated to stop the harassment. (See note 22, below.) The action should follow standard disciplinary guidelines and reflect whether the incident is the first violation of the policy or part of a pattern of harassment. In addition, the discipline should be carefully documented and consistent with past practices. (See Disciplinary Procedure, Chapter 808.)
The nature and seriousness of the harassment are also important considerations. The organization should resist the punitive approach of suspending or terminating all violators without regard to the severity of the conduct. Zero tolerance policies are seldom reasonable or practical to implement. Employees who feel they have been unjustly accused, treated too harshly, or unfairly terminated often bring wrongful discharge, defamation, or emotional distress claims. Furthermore, overly harsh treatment against the accused can create resentment against the complaining employee. On the other hand, an overly lenient response, such as only giving warnings in cases of severe harassment, may be ineffective to stop the behavior and can force the complaining employee to seek outside help. In addition, a weak response provides no defense and may increase the monetary damages awarded the employee. Finally, to ensure actual compliance and prevent reoccurrence of policy violations, employers should closely monitor all corrective remedies imposed.
11Promise of No Retaliation: The Equal Employment Opportunity Commission’s Policy Guidance on Current Issues of Sexual Harassment (see note 13, below) dictates that employer policies against harassment should contain a provision protecting complaining employees and witnesses from retaliation. As a practical matter, a "no retaliation statement" should bolster employee confidence in the policy itself and make employees feel they will be protected when they make a bona fide complaint. In addition, employers should inform witnesses and other employees of their obligation to cooperate with management’s investigation, assure that they will be protected from retaliation when they do so, and remind them that prohibited retaliation is to be reported immediately.
However, employees also must understand that intentionally bringing false complaints of harassment will be reason for disciplinary action. (See note 10, above.) That said, it is important to convey this information in a way that does not discourage good-faith reports. For this reason, the Model Policy does not include a provision stating that employees will be disciplined for false complaints. (See note 1, above). Employers, even when skeptical, should investigate all complaints to assess whether the situation warrants remedial action and to protect against liability.
References for Legal Counsel
12Prohibiting All Forms of Harassment: Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§2000e et seq., has been interpreted to prohibit harassment or a work environment abusive to employees because of their race, gender, religion, or national origin. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Although the most common harassment claims involve allegations of sexual harassment (see note 13, below), the same legal analysis applies when the illegally offensive behavior is based on any protected class, including race, sex, religion, national origin, age, or disability. In its Enforcement Guidance on Harris v. Forklift Systems Inc. (1994), the Equal Employment Opportunity Commission ("EEOC") takes the position that: (1) conduct constituting harassment on any of the bases covered by Title VII is unlawful as a discriminatory term or condition of employment; and (2) that the same analysis applies to hostile environment cases involving age or disability discrimination.
For instance, numerous courts have applied the Supreme Court’s analysis of liability for supervisory hostile work environment sexual harassment (from Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, Fla., 524 U.S. 775 (1998)) to cases of racial harassment. See, e.g., Wright-Simmons v. Oklahoma City, 155 F.3d 1264 (10th Cir. 1998) (the court applied the Ellerth/Faragher standard to allow an employee to go forward with a claim of racial harassment). (See note 19, below, for a detailed discussion of hostile work environment discrimination.) Therefore, to protect against liability for harassment based on an employee’s protected class membership, employers’ policies should specifically prohibit all forms of harassment based on these classes. The following court cases show how hostile environment claims may arise from any status protected under Title VII and the Americans with Disabilities Act.
Racial harassment. In Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001), a supervisor’s repeated use of a racial slur and use of the term "monkey’ to describe African Americans constituted a hostile work environment in violation of Title VII. Similarly, in McCowan v. All Star Maintenance, 273 F.3d 917 (10th Cir. 2001), the court determined that three Mexican American employees could claim they were subjected to a racially hostile work environment harassment since they were called racial epithets and overheard and were told about racial epithets directed at them during their employment.
Harassment based upon gender. In Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75 (1998), the Supreme Court determined that Title VII prohibits conduct that is motivated by gender and that is so offensive to the reasonable person that it alters the workplace environment. Further, courts have penalized employers that did not specifically include gender harassment in their policies. See, e.g., Smith v. First Union Nat’l Bank, 202 F.3d 234 (4th Cir. 2000) (the court determined that an employer’s harassment policy was deficient because it recognized only harassment based on sexual advances and propositions, not harassment based on gender).
Religious harassment. In Abramson v. William Paterson College, 260 F.3d 265 (3d Cir. 2001), the court found that an Orthodox Jewish professor had a claim for hostile environment based upon religion. Her supervisor criticized and berated her for her lack of availability during the Sabbath, scheduled meetings on Jewish holidays and refused to change them so that she could attend, charged her with a sick day on a Jewish holiday when she was not scheduled to teach, and made derogatory statements to her about her faith. An employer also may be subject to hostile environment harassment claims if it pressures employees to conform to, or imposes on employees, any religious beliefs.
National or ethnic origin harassment. The court allowed a Mexican-American employee whose coworkers routinely called him "Julio," "Chico," and "Taco," and whose supervisor referred to him as "wetback" and "spic" and shouted other ethnically derogatory terms at him daily, to pursue a claim for a hostile work environment. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002). In response to a reported increase in race, religious, and national origin complaints since the terrorist attacks of September 11, 2001, the EEOC issued its Fact Sheet on Employer Responsibilities: Questions and Answers About Employer Responsibilities Concerning the Employment of Muslims, Arabs, South Asians, and Sikhs. The EEOC reinforced that employers have an ongoing responsibility to prevent discrimination based on race, religion, and national origin, but did not create any new obligations for employers.
Disability harassment. Courts also have specifically found that the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et. seq., like Title VII, creates a cause of action for hostile work environment harassment. Thus, in Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001), the court allowed the hostile environment claim of an employee whose supervisor taunted him about his disability, required him to do tasks beyond his physical limitations, and called him various derogatory names related to his disability.
13Duty to Prevent Sexual Harassment: Although all forms of harassment that are based on an individual’s membership in a protected class are considered forms of discrimination (see note 12, above), sexual harassment is a special form of harassment which has received the most attention from the courts and the Equal Employment Opportunity Commission ("EEOC"). Both the courts and the EEOC have taken the position that employers explicitly must prohibit and effectively implement policies against sexual harassment. Thus, the Model Policy emphasizes the need for particular sensitivity to, and vigilance against, sexual harassment.
Definition of sexual harassment. In 1980, the EEOC recognized in its Guidelines on Discrimination Because of Sex that sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964 ("Title VII"). 29 C.F.R. §1604.11(a). The Guidelines define sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature when:
(1) Submission to that conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
(2) Submission to or rejection of that conduct by an individual is used as the basis of employment decisions affecting the individual; or
(3) The conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. 29 C.F.R. §1604.11(a).
Based on these criteria, sexual harassment typically is categorized as either "quid pro quo" or "hostile environment." The first two criteria describe harassment referred to as quid pro quo (meaning an exchange of something of value between two parties or, literally, "this for that"). Quid pro quo harassment occurs when supervisors promise or withhold employment opportunities as a means of coercing sexual favors. (See note 15, below.) Hostile environment sexual harassment takes place when an employee is exposed to an environment pervaded by sexual, lewd, or profane remarks, body touching, obscene or nude photographs, or other offensive conduct. (See note 19, below.) Typically, there is no direct link between the offensive conduct and a tangible job benefit or detriment in hostile environment cases. Certain situations may involve both types of sexual harassment.
Harassment must be unwelcome. Both the EEOC Policy Guidance on Current Issues of Sexual Harassment (1990) and the Supreme Court’s decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), clarify that conduct must be unwelcome to be considered unlawful sexual harassment. However, as the EEOC notes, "[b]ecause sexual attraction may often play a role in the day-to-day social exchange between employees, the distinction between invited, uninvited-but-welcome, offensive-but-tolerated, and flatly rejected sexual advances may well be difficult to discern." Because of the potential for conflicting evidence, the EEOC evaluates the issue of "welcomeness" on a case-by-case basis, taking into account the totality of the circumstances. 29 C.F.R. §1604.11(b). According to the its 1990 Policy Guidance, several factors are relevant to the EEOC’s determination of welcomeness, including:
(1) Was there a timely complaint? According to the EEOC, where welcomeness is an issue, the complaining employee’s claim is strengthened considerably if a contemporaneous complaint or protest is made to the employer. See Carr v. Allison Gas Turbine Div., 32 F.3d 1007 (7th Cir. 1994) (the fact that the employee complained about the harassing conduct from 1985 to 1989, when she quit, contributes to the conclusion that the conduct was unwelcome); Marshall v. Nelson Electric, 766 F. Supp. 1018 (N.D. Okla. 1991), aff’d 999 F.2d 547 (10th Cir. 1993), cert. denied, 510 U.S. 1092 (1994) (the employee’s failure to complain of sexual harassment in the union grievance she filed was considered in finding that she failed to show that the conduct was unwelcome.) A "contemporaneous" complaint is one made while the harassment is occurring or shortly after it has stopped. However, the fact that the employee did not complain in a timely fashion will not necessarily invalidate a claim. In this situation, the EEOC attempts to find out why the complaint was not made sooner and whether this is consistent with the complaining employee’s allegation that the conduct was unwelcome.The Supreme Court in Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, Fla., 524 U.S. 775 (1998), also has indicated that an employer may be able to defend itself against liability for a supervisor’s harassment if it can show that the complaining employee "unreasonably failed" to take advantage of a complaint procedure. However, an employer may use this defense only if the harassment did not result in a tangible employment action (such as termination) and if the employer has taken reasonable care to prevent and properly correct sexual harassment in the workplace. See, e.g., Madray v. Publix Supermarkets, Inc., 208 F.3d 1290 (11th Cir.), cert. denied, 531 U.S. 926 (2000) (the supermarket was entitled to use the affirmative defense to sexual harassment claims because the employees acted unreasonably by delaying their use of its established sexual harassment complaint procedure and by reporting the alleged harassment only informally to mid-level managers rather than those upper-level managers designated in its policy).
(2) What conduct did the complaining employee engage in? The fact that the complaining employee engaged in sexually explicit or aggressive conduct may indicate that the behavior being complained about was not unwelcome. The EEOC’s 1990 Policy Guidance acknowledges that if the complaining employee regularly initiated sexually-oriented conversations, it can be inferred that sexual remarks by coworkers were "prompted by [the complaining employee’s] own sexual aggressiveness and sexually explicit conversations." See Marshall v. Nelson Electric, 766 F. Supp. 1018 (N.D. Ok. 1991), aff’d 999 F.2d 547 (10th Cir. 1993), cert. denied, 510 U.S. 1092 (1994) (the complaining employee failed to establish that the conduct was unwelcome when the evidence showed that she used foul language, asked other employees if they had sex, and participated in pulling down the supervisor’s pants).
However, even though the complaining employee’s conduct may be taken into consideration, the employee’s use of foul language or sexual innuendo does not necessarily create a defense. There also must be some link between the complaining party’s conduct and the harassing behavior to indicate that the conduct was welcome. See Carr v. Allison Gas Turbine Division, 32 F.3d 1007 (7th Cir. 1994) (the complainant’s "unladylike" behavior , such as using foul language or pointing to a feature of female anatomy in a pornographic picture, does not show that she welcomed the behavior of exposing genitals, calling her vulgar names, playing sex-related pranks, and posting nude pictures and graffiti in her work area); Burns v. McGregor Elec. Ind., 989 F.2d 959 (8th Cir. 1993) (the fact that the complaining employee posed for a nude magazine picture outside of work hours is irrelevant to the issue of welcomeness because private life does not relate to unwanted sexual advances at work.)
The EEOC acknowledges that a more difficult situation occurs when an employee first willingly participated in conduct of a sexual nature but then ceases to participate and claims that subsequent sexual conduct created a hostile work environment. In this situation, the employee has the burden of proving that further sexual conduct is unwelcome, work-related harassment.
(3) Was the relationship consensual? The Supreme Court, in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), recognized that the issue is not whether someone submitted to the offensive conduct but whether the conduct in question was welcome. Accordingly, the 1990 Policy Guidance makes a distinction between a relationship that is consensual and one that is voluntary. A consensual relationship typically is one where both parties agree to a romantic relationship and there is no coercion involved, such as a threat to fire or hinder advancement. Consensual relationships are not considered to involve sexual harassment. (See note 16, below.) On the other hand, some sort of coercion, and therefore sexual harassment, may be involved in a voluntary relationship where one of the parties merely acquiesces to the sexual advances. See, e.g., Burns v. McGregor Elec. Ind., 989 F.2d 959 (8th Cir. 1993) (the harasser’s claim that the relationship was voluntary is not a defense); Boyd v. Vonnahmen, 67 FEP Cases 1769 (S.D. Ill. 1995) (the employee’s submission to demands does not mean that the relationship was consensual).
The existence of a prior consensual relationship will not always preclude a sexual harassment claim. For instance, in Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001), a restaurant worker who endured harassing behavior of a sexual nature from her ex-boyfriend and coworker had sufficiently shown that the harassment was based upon her sex rather than his personal animosity.
Requirement of a policy. The EEOC’s 1990 Policy Guidance emphasized that employers have an affirmative duty to prevent sexual harassment in the workplace. The Policy Guidance further provides that "[a]n effective preventive program should include an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented." In addition, the Supreme Court in Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, Fla., 524 U.S. 775 (1998), determined that an employer can defend itself from liability for a supervisor’s harassment in cases where the harassment does not result in a tangible employment action if it has taken reasonable care to prevent and correct promptly any sexually harassing behavior, such as adopting an effective policy against sexual harassment with a complaint procedure. (The employer also must show that the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided.) (See also note 19, below.)
Even so, employers are not legally required by federal case law or Title VII’s provisions to institute formal harassment policies. See Faragher, 524 U.S. 742 (1998) and Ellerth, 524 U.S. 775 (1998), (proof that an employer has promulgated an anti-harassment policy with complaint procedures is not necessary in every instance as a matter of law.) See also Hall v. Bodine Electric Company, 276 F.3d 345 (7th Cir. 2002) (an employer with an effective channel for reporting harassment who responded promptly and effectively to the employee’s complaints was not liable for hostile environment sexual harassment even though it had no formal policy). Note, though, that while federal law does not specifically require an anti-harassment policy, some states, such as Rhode Island, mandate the establishment and dissemination of a formal written sexual harassment policy. See R.I. Gen. Laws § 28-51-2 (2001) and below. Therefore, employers should consult state law for any specific requirements.
Nevertheless, court decisions and EEOC guidances consistently show that employers can decrease their liability for hostile work environment harassment by maintaining and enforcing internal policies to prevent and deal with harassment. Employers should be aware, however, that the existence of an anti-harassment policy alone will not insulate them from liability. They also must make certain their policies clearly outline the complaint procedure and that they are effectively disseminated, implemented and enforced. For instance, in Frederick v. Sprint/United Management Co., 246 F.3d 1305 (11th Cir. 2001), the court said that an employer’s showing that it has a sexual harassment policy does not automatically satisfy its duty to prevent sex harassment. Therefore, since the employer could not demonstrate whether its policy had been adequately disseminated or what the complaint procedures under it were, the complaining employee could maintain a sex harassment claim. See also Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002) (the employer’s anti-harassment policy was ineffective since no member of the management hierarchy was familiar with it, the policy was not posted in the workplace and was inexplicably missing from the complainant’s personnel file, and company practice indicated a tolerance toward harassment or discrimination).
State harassment laws. Most states recognize sexual harassment as a form of sex discrimination under their fair employment practices laws. Many treat it in the same manner that federal law does, with similar definitions and remedies. Some states, such as Rhode Island, specifically require employers to establish and disseminate a formal written sexual harassment policy. See R.I. Gen. Laws § 28-51-2 (2001) (all employers with 50 or more employees must adopt a policy against sexual harassment whose contents are prescribed by statute, provide a written copy to all employees, and maintain a copy at their business premises). In addition, a few states require employers to provide specific sexual harassment training or information to employees. See, e.g., Cal. Govt. Code §12950 (employers must provide employees with sexual harassment information sheets from the Department of Fair Employment and Housing); Conn. Stat. §46a-54 (all employers with 50 or more employees must give supervisors two hours of training on sexual harassment); 26 Maine Rev. Stat. §807 (all new employees of employers with 15 or more employees must receive sexual harassment education and training). Therefore, employers should make sure to comply with state laws related to establishment and dissemination of their policies and check training requirements each time the policy is reviewed.
But even where not legally required, supervisory training is a vital element of any harassment policy and its implementation. Since employers can be liable for both "quid pro quo" and "hostile work environment" harassment by their supervisors (see notes 15 and 19, below), they should be instructed on how to deal with sexual harassment complaints and warned against engaging in harassment themselves. See Anderson v. G.D.C., Inc., 281 F.3d 452 (4th Cir. 2002), (female truck driver could sue for punitive damages in her sexual harassment claim where her employer had made no efforts to prevent or remedy the harassment, had no antidiscrimination policy and did not provide "any training whatsoever" regarding discrimination). For more information on supervisory training, see Equal Employment Opportunity, page 201:25, note 24.
14Remedies for Sexual Harassment: Employees who claim sexual harassment typically must file their claims with the Equal Employment Opportunity Commission ("EEOC") or the equivalent state agency before they may pursue the matter in court. Most state employment discrimination laws also recognize sexual harassment as a form of sex discrimination and treat it in a manner similar to the EEOC’s approach. (See note 13, above.) Under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§2000 et seq., a successful complainant is entitled to injunctive relief (an order barring continued harassment) as well as back pay, front pay (compensation when reinstatement is not appropriate), and attorneys’ fees.
The enactment of the Civil Rights Act of 1991 increased the exposure of employers to monetary damages. The Act amended Title VII and allows employees to receive compensatory damages for emotional suffering experienced as a result of the harassment. It also provides for punitive damages. See, e.g., Clark v. Commonwealth of Pennsylvania, 885 F. Supp. 694 (E.D. Pa. 1995) (compensatory and punitive damages are available to a sexual harassment plaintiff even if her employment was not terminated). Upper limits on damages apply to both compensatory and punitive damages, depending on the size of the employer, and range from $50,000 to $300,000. (For more information about damages under the 1991 Act, see Guide to Federal Laws and Orders, page 20:19.)
Unlike Title VII, many state antidiscrimination statutes provide for unlimited compensatory and punitive damages in sexual harassment cases. Consequently, employees seeking large damage awards may file their claims in state courts so they will not be subject to the Title VII damages caps. Furthermore, state tort law may provide another source of unlimited damages for claims arising from the same facts as sexual harassment. These claims may allege battery, invasion of privacy, intentional infliction of emotional distress, and defamation. See, e.g., Hoffmann-La Roche Inc., v. Zeltwanger, 69 S.W.3d 634 (Tex. App. 2002) reh. granted, 2002 Tex. LEXIS 181 (Tex. 2002) (the court affirmed a jury award of $10 million on the employee’s claims of sexual harassment and intentional infliction of emotional distress against her employer and boss, including $1 million for mental anguish and $8 million in punitive damages against her employer for intentional infliction of emotional distress; and $30,000 for mental anguish and $7,500 in punitive damages against her boss for intentional infliction of emotional distress). However, these tort claims may be barred by the state discrimination law in some states. See, e.g., Geise v. Phoenix Co. of Chicago, Ill., 639 N.E.2d 1273 (Ill. 1994) (negligence claims that were based on the same facts as the discrimination claim were dismissed as preempted by the state discrimination law). Almost all forms of relief available to sexual harassment claimants are also available to individuals claiming other types of harassment, such as racial or religious harassment. (See note 12, above.)
In some cases, complaining employees may have a remedy for harassment from persons and entities other than their immediate employer, such as a joint employer. For instance, in Hunt v. State of Missouri, 297 F.3d 735 (8th Cir. 2002), two nurses assigned by a temporary staffing agency to work at a state prison recovered damages against the prison for retaliation after they complained of sex harassment. In its decision, the court cited the prison’s close supervision and scrutiny of the nurses’ work and its control over their intolerable working conditions. (See Employee Classifications, page 209:7, note 19 for more information on joint employer liability.) In addition, supervisors, human resources professionals, business owners, and other decisionmakers may find themselves personally liable for harassment under some state discrimination laws. For example, in California, all employees, including supervisors, are personally liable for their own acts of harassment under the state employment discrimination laws. See Cal. Lab. Code §12940(j)(3). Individuals generally cannot be liable under federal discrimination laws, however. (For more information on a supervisor’s personal liability, see Employee Supervision, pages 103:3, notes 5 and 8.)
15Quid Pro Quo Harassment: Sexual harassment by managers and supervisors generally is considered "quid pro quo" harassment when it involves the solicitation of sexual favors in exchange for some type of employment decision. 29 C.F.R. §1604.11(a). (See note 13, above.) The employment decision may be the promise to advance the employee or it may be a threat to the employee’s status unless the employee acquiesces. According to the Equal Employment Opportunity Commission’s 1990 Policy Guidance on Current Issues of Sexual Harassment, even a single sexual advance may be considered quid pro quo sexual harassment if it is coupled with the granting or denial of an employment benefit.
What the employee must prove. To prove quid pro quo harassment, a complaining employee must show that she was subject to an unwelcome request for sexual favors by a supervisory employee and that her acquiescence to, or rejection of, the request was used as the basis for decisions affecting her compensation, terms, conditions, or other privileges of employment. See, e.g., Farrell v. Planters Lifesavers, Co., 206 F.3d 271 (3d Cir. 2000) (the court could infer a causal connection between the employee’s rejection of her manager’s sexual advance and her subsequent discharge based on evidence that the supervisor’s demeanor and attitude toward her changed and that she was terminated within weeks of the incident). A quid pro quo claim may be established even if the employee does not have any actual economic losses, such as when the employee submits to sexual advances to avoid the threatened consequences of not doing so. See Karibian v. Columbia Univ., 14 F.3d 773 (2d Cir.), cert. denied, 512 U.S. 1213 (1994) (the court determined that the threat of economic loss was sufficient to state a valid claim of quid pro quo harassment; the relevant inquiry in a quid pro quo case is whether the supervisor has linked tangible job benefits to the acceptance or rejection of sexual advances).
Employer liability for quid pro quo harassment. In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), the Supreme Court ruled that employer liability in sexual harassment cases is based on traditional principles of agency law. These principles recognize that the employer may be held "strictly liable" for the acts of someone who has the actual or apparent authority to act for or represent it. See Jansen v. Packaging Corp. of America, 123 F.3d 490 (7th Cir. 1997) (standard for employer liability in quid pro quo harassment cases is strict liability). Strict liability means that the employer’s liability is established once harassment by a manager or supervisor has been proven. In Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, Fla., 524 U.S. 775 (1998), the Supreme Court further determined that if a supervisor’s harassment results in a tangible employment action, the employer’s liability is absolute. Strict liability also may be imposed where an employee submits to a supervisor’s sexual demands and thereby avoids adverse employment action. See Min Jin v. Metropolitan Life Insurance Company, 310 F.3d 84 (2d Cir. 2002) (an employee’s showing that her supervisor explicitly threatened to terminate her if she did not submit to his sexual demands and then allowed her to keep her job after she submitted was evidence of possible tangible employment creating automatic liability for her employer).
In strict liability cases, no consideration is given to factors such as whether the employer condoned the behavior or took steps to prevent it. Evidence of remedial action may be used to limit damages, however. See, e.g., Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982) (the employer may not escape liability for quid pro quo sexual harassment by showing that it took subsequent remedial measures, although such evidence may be relevant to damages). Accordingly, federal courts have held employers liable for quid pro quo harassment by supervisors as a result of the supervisors’ actual or apparent authority to hire, fire, discipline, or promote. See Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59 (2d Cir. 1992) (a supervisor in a quid pro quo harassment case is considered to act on behalf of the employer when making decisions affecting the economic status of the employee). The complaining employee does not need to show that the employer knew or should have known of the harassment in order to establish a quid pro quo harassment claim.
In addition, if employment opportunities or benefits are granted because of an employee’s consensual submission to a request for sexual favors, the employer may be held liable for unlawful sex discrimination against other employees. Liability is found in those cases if it appears that it is necessary to grant sexual favors in order to receive the opportunities or benefits. (See note 16, below.)
Other forms of supervisory harassment. Not all harassment by supervisors meets the definition of quid pro quo harassment. Supervisors also may create a hostile work environment. For example, a supervisor may threaten adverse employment action but not carry out the threats. Alternatively, the supervisor may create an abusive environment without soliciting a direct exchange of sexual favors for career security or advancement. A different standard of employer liability applies to these cases. (See note 19, below.)
16Preferential Treatment: The Equal Employment Opportunity Commission ("EEOC") Guidelines on Discrimination Because of Sex (1980) state that if employment opportunities or benefits are granted to an employee because of the employee’s submission to sexual advances or requests, the employer may be liable for unlawful sex discrimination against other individuals who were denied the employment opportunity or benefit even though they were qualified. 29 C.F.R. §1604.11(g). However, according to the EEOC’s Policy Guide on Employer Liability for Sexual Favoritism Under Title VII (1990), "Title VII does not prohibit isolated instances of preferential treatment based upon consensual romantic relationships." Thus, a supervisor’s preference for a paramour usually has not been considered sexual harassment.
For example, in DeCintio v. Westchester County Medical Ctr., 807 F.2d 304 (2d Cir. 1986), the complaining employees alleged that a manager added a job requirement that disqualified all seven male applicants for the job and allowed him to hire the female applicant with whom he was having a consensual, romantic relationship. The court ruled that the men were not discriminated against because they were males, but because the manager preferred his own paramour. The court pointed out that the male applicants were in the same situation as any woman applicant other than the paramour. Similarly, in Taken v. Oklahoma Corp. Comm., 125 F.3d 1366 (10th Cir. 1997), Title VII was not violated when a minority female employee involved in a consensual, romantic relationship with a partner in the decisionmaking process was promoted instead of two white female employees who were more qualified. The court determined that the white employees were in the same position as all men and other women who did not have a romantic relationship with the person making the promotion decision and, therefore, the decision was not discriminatory.
In addition, a coworker’s romantic involvement with a supervisor by itself cannot create a hostile environment sexual harassment claim. See Candelore v. Clark County Sanitation Dist., 975 F.2d 588 (9th Cir. 1992) (the employee failed to state a cause of action for sex discrimination based on a coworker’s alleged affair with one or more of the employee’s supervisors). This is especially true where most of the behavior relied on to establish the relationship occurred away from the workplace or outside business hours. However, a consensual sexual relationship may lead to a hostile environment claim if the relationship results in a sexually-charged workplace atmosphere so oppressive that it affects the terms and conditions of employment of other employees. See Drinkwater v. Union Carbide Corp., 904 F.2d 853 (3d Cir. 1990) (an employee could state a claim for hostile environment sexual harassment based on coworker’s consensual relationship with supervisor if the relationship made the work atmosphere so "charged with sexual innuendo" as to be discriminatory against women).
Preferential treatment also may constitute quid pro quo harassment. (Quid pro quo harassment is discussed in note 15, above.) A complainant can bring a claim for quid pro quo harassment if she identifies a preferred employee who consensually granted sexual favors, alleges that it was generally necessary for women to grant sexual favors to decisionmakers, and alleges that she was not extended specific employment opportunities because she did not grant the sexual favors. Piech v. Arthur Andersen & Co., 841 F. Supp. 825 (N.D. Ill. 1994). See also Dirksen v. City of Springfield, 842 F. Supp. 1117 (C.D. Ill. 1994) (an employee has a claim for quid pro quo harassment where a supervisor tells her that sexual favors are required for the job and replaces her with another employee who acquiesces); EEOC Policy Guide on Employer Liability for Sexual Favoritism Under Title VII.
17Harassment by Nonsupervisory Employees: Harassment by nonsupervisory employees generally falls into the category of "hostile environment" sexual harassment rather than "quid pro quo" harassment. (See note 12, above, for a discussion of other prohibited forms of harassment; and note 15, above, for a discussion about quid pro quo harassment; and note 19, below, for a discussion about hostile environment claims.) Nonsupervisory employees normally do not have authority over their coworkers’ employment and therefore cannot take tangible job action against an employee, or, as is required to establish quid pro quo harassment, condition job benefits on the receipt of sexual favors. According to the Equal Employment Opportunity Commission Guidelines on Discrimination Because of Sex (1980), an employer is responsible for hostile environment harassment by nonsupervisory employees only if the employer knew or should have known of the harassment and failed to take immediate and appropriate remedial action. 29 C.F.R. §1604.11(d). See also Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002) (an employer may be directly liable for hostile work environment harassment when it knew about a coworker’s name calling and did not take appropriate or immediate corrective action). (For more information on hostile environment harassment, see note 19, below.)
18Harassment by Nonemployees: According to the Equal Employment Opportunity Commission ("EEOC") Guidelines on Discrimination Because of Sex (1980), an employer may be responsible for sexual harassment by nonemployees, such as customers or vendors, if it knew or should have known about the problem and it failed to take immediate and appropriate corrective action. See, e.g., Folkerson v. Circus Circus Enterprises, Inc., 107 F.3d 754 (9th Cir. 1997) (an employer may be held liable for sexual harassment by a nonemployee, such as a casino patron, if the employer acquiesces in the harassment by not taking immediate corrective action when it knew or should have known of the conduct). The EEOC’s Guidelines indicate that the Commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of the nonemployees. 29 C.F.R. §1604.11(e).
Courts that have considered the issue of nonemployee harassment generally have agreed with the EEOC and have ruled that a harasser’s nonemployee status does not automatically shield the employer from liability if the employer knew or should have known of the harassment and failed to remedy the situation. As explained in Powell v. Las Vegas Hilton Corp., 841 F. Supp. 1024 (D. Nev. 1992), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., gives employees the right to work in an environment that is free from discriminatory intimidation, ridicule, and insult. For this reason, an employer may be liable for sexual harassment by nonemployees, including clients, customers, and independent contractors.
For example, an employee who is sexually harassed by customers because her employer requires her to wear a sexually provocative uniform may bring a claim under Title VII against the employer. See EEOC v. Newtown Inn Assoc., 647 F. Supp. 957 (E.D. Va. 1986). Similarly, a store cashier who complains to her employer about repeated sexual comments, touching, and attempted grabbing by a regular customer has a sexual harassment claim against her employer because it failed to take action. Menchaca v. Rose Records, Inc., 67 FEP Cases 1334 (N.D. Ill. 1995). See also Turnbull v Topeka State Hospital, 255 F.3d 1238 (10th Cir. 2001), cert. denied, 122 S. Ct. 1435 (2002) (a staff psychologist at a state mental health facility had a claim for hostile environment sex harassment after a patient sexually assaulted her; the hospital knew its patients created a sexually hostile environment and therefore had a duty to take all reasonable measures to alleviate known or obvious risks); Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998) (the court upheld a $200,000 jury verdict for an employee sexually harassed by a customer; the employee’s supervisor failed to take appropriate action to stop the harassment as directed by the employer’s policy).
These harassment claims typically are characterized as "hostile environment" rather than "quid pro quo" harassment. (See note 15, above; and note 19, below.) Nonemployees are not usually in a position to grant or deny tangible job benefits. However, an employer is liable when it orders an employee to acquiesce to a customer’s sexual demands. See Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848 (1st Cir. 1998) (the employer was held liable for quid pro quo harassment by a customer since it ratified and/or acquiesced in the customer’s demands).
19Hostile Work Environment Harassment: The Supreme Court recognized that unwelcome sexual conduct that creates a hostile and offensive work environment violates Title VII of the of the Civil Rights Act of 1964 ("Title VII") in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Since then, the EEOC and the courts have expanded the hostile and offensive work environment analysis to prohibit harassment based upon race, sex, religion, national origin, age, and disability. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); EEOC Enforcement Guidance on Harris v. Forklift Systems Inc. (1994). (See also note 12, above.) To violate Title VII and other nondiscrimination laws, the conduct must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. The Court in Meritor also found that different standards for determining liability apply to cases of "hostile environment" and "quid pro quo" harassment. Once harassment is established under the "quid pro quo" version, the employer is automatically liable and factors such as whether the employer remedied the situation are considered only for purposes of limiting damages. (See note 15, above.) In contrast, the employer’s liability in hostile work environment cases is established by showing not only that the harassment occurred, but also that the employer did not take appropriate action.
What the employee must prove to show a coworker created a hostile environment. Specifically, the complaining employee must show that:
(1) the complaining party was subjected to unwelcome sexual harassment or, in the case of non-sexual harassment, the complaining party perceived the environment to be hostile or abusive (see note 13, above);
(2) the harassment was motivated by the employee’s gender or membership in another protected class;
(3) the harassment was so pervasive and debilitating that it created an offensive working environment; and
(4) the employer knew, or reasonably should have known, about it and failed to take immediate and appropriate action.
Typically, proving that the harassment was so pervasive and debilitating that it created an offensive environment (item (3), above) is the most difficult because it requires a determination of how serious the conduct must be in order for it to constitute unlawful harassment. The EEOC in its Policy Guidance on Current Issues of Sexual Harassment (1990) identified six factors to consider in determining how severe the behavior is, including: (1) whether the conduct was verbal or physical, or both; (2) the frequency of the conduct; (3) whether the conduct was hostile and patently offensive; (4) whether the alleged harasser was a coworker or a supervisor; (5) whether others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual.
According to the Supreme Court in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), employees do not have to prove that offensive conduct caused them severe psychological injury in order to prove hostile work environment sexual harassment. The Court found that as long as the employee’s work environment would reasonably be perceived as hostile, the employee does not have to show that she suffered psychological harm as a result of it. The Court also provided employers with some guidance on the factors that should be considered in determining whether conduct creates a hostile work environment. These factors include: (1) the frequency and severity of the offensive conduct; (2) whether the conduct is physically threatening or humiliating; and (3) whether the conduct unreasonably interfered with the employee’s work performance.
Pattern of offensive conduct. Generally, a hostile environment claim, unlike a quid pro quo claim, requires a showing of a pattern of offensive conduct. EEOC Policy Guidance on Current Issues of Sexual Harassment (1990). To establish a pattern, evidence may include incidents involving the complaining employee as well as incidents directed at other employees. An isolated incident generally will not create a hostile environment unless it is "quite severe," such as the unwelcome touching of "intimate body areas." See, e.g., Creamer v. Laidlaw Transit, Inc., 86 F.3d 167 (10th Cir.), cert. denied, 519 U.S. 983 (1996) (a single incident of alleged sexual harassment involving a coworker picking up the employee, placing her on a pool table, and pinning her back against the table was not severe or pervasive enough to constitute a hostile work environment).
However, direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment and, if egregious, even one incident can be found to be an illegal act of harassment. See Worth v. Tyler, 276 F.3d 249 (7th Cir. 2001) (evidence that the employee’s supervisor put his hand down her dress and placed it on her breast for several seconds was sufficient to conclude that the conduct was severe); Little v. Windermere Relocation, 301 F.3d 958 (9th Cir. 2001) (rape is unquestionably among the most severe forms of sexual harassment and is a single incident sufficient to support a claim of hostile environment sexual harassment.) In cases based upon race or national origin, the courts often consider the use of a racial or ethnic slur as sufficiently severe to establish hostile environment. See e.g., Cerros v. Steel Technologies, Inc., 288 F.3d 1040 (7th Cir. 2002) (there is no "magic number" of slurs that indicate a hostile work environment, but an unambiguously racial epithet falls on the "more severe" end of the spectrum; thus an employee who endured a workplace environment filled with slurs and graffiti based upon his race and national origin stated a claim for hostile environment.)
The reasonable person standard. In determining whether conduct is considered hostile environment sexual harassment, courts and the EEOC typically evaluate the conduct from the objective standpoint of a "reasonable person" under similar circumstances. Under this standard, the employee must establish not only that she personally perceived her work environment to be hostile but also that a reasonable person would have perceived it to be hostile. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994) (the court considered both the actual effect of the harasser’s conduct on the female employee and the effect similar conduct would have had on a reasonable person in the employee’s position); Baskerville v. Culligan International Co., 50 F.3d 428 (7th Cir. 1995) (an unlawful hostile environment does not exist when "only a woman of Victorian delicacy - a woman mysteriously aloof from contemporary American culture in all its sex-saturated vulgarity" would find the comments substantially distressing).
However, a few courts have adopted a "reasonable woman" standard to use instead of the reasonable person standard for these cases. In Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991), the Ninth Circuit concluded that offensive conduct must be evaluated from the perspective of a reasonable person of the same gender as the victim. The court rejected the "reasonable person" standard because it does not take into consideration the different perspectives of men and women. See also Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997) (the employee established a prima facie case of hostile environment sex discrimination because a reasonable woman would have found her working conditions altered and abusive based on the alleged conduct).
Employer liability for hostile environment created by supervisors. The Supreme Court established specific standards for employer liability for hostile environment sexual harassment by supervisors in Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, Fla., 524 U.S. 775 (1998). Generally, employers are liable for sexual harassment by supervisors. When the harassment results in a tangible employment action against the employee (such as firing or demotion), the employer’s liability is automatic. In other words, the employer is liable even if it took action to prevent the harassment.
However, when there is no tangible action, the employer can defend itself by showing (1) that it has taken reasonable care to prevent and properly correct sexual harassment in the workplace (such as by adopting and disseminating an effective policy and complaint procedure); and (2) that the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided. See also EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999); Matvia v. Bald Head Island Management, Inc., 259 F.3d 261 (4th Cir. 2001) (the employee failed to take advantage of the preventative or corrective opportunities provided by her employer when she did not report sex harassment that had occurred over a three month period; her contention that she needed time to collect evidence so that company officials would believe her and that she wanted to determine whether the harasser was a sexual predator or merely an interested male who could be rebuffed was unreasonable); Madray v. Publix Supermarkets, Inc., 208 F.3d 1290 (11th Cir.), cert. denied, 531 U.S. 926 (2000) (the supermarket was entitled to assert the affirmative defense to sexual harassment claims because the employees acted unreasonably by delaying their use of its established sexual harassment complaint procedure and by reporting the alleged harassment only informally to mid-level managers rather than those upper level managers designated in its policy).
The equal opportunity harasser. Title VII does not guarantee an employee a utopian workplace or protect employees from personality conflicts but only prohibits harassment based on race, national origin, sex, and religion. Therefore, a coworker or supervisor who is nasty to all employees, without targeting them because of their race, national origin, sex, or religion, does not create a hostile work environment claim under Title VII. See Ocheltree v. Scollon, 308 F.3d 351 (4th Cir. 2002) (the sexual banter and vulgarity that pervaded the workplace were equally offensive to both sexes and thus did not support a claim of sexual harassment under Title VII); Montandon v. Farmland Industries, Inc., 116 F.3d 355 (8th Cir. 1997) (an employee failed to state a claim for sexual harassment when he alleged that a supervisor was extremely unpleasant to certain employees while favoring others but different treatment was based on personal like or dislike, not on sex). But see Winsor v. Hinckley Dodge, Inc., 79 F.3d 996 (10th Cir. 1996) (in a sexual harassment case, the fact that the alleged abuse is motivated by gender-neutral reasons is irrelevant if the resulting conduct has sexual content).
20Harassment by Members of Same Sex: Title VII of the Civil Rights Act of 1964 ("Title VII") does not specifically address whether harassment by members of the same sex is prohibited, and it does not prohibit discrimination based on sexual orientation. However, the Supreme Court in Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75 (1998), interpreted Title VII to allow same-sex harassment claims to be brought under that law. According to the Court, Title VII prohibits conduct that is motivated by gender and that is so offensive to the reasonable person that it alters the workplace environment. The Court also determined that the sexual orientation of the alleged harasser and the victim is not a consideration and does not need to be revealed in determining whether illegal harassment has occurred. See also Rene v. MGM Grand Hotel, In., 305 F.3d 1061 (9th Cir. 2002) (a gay employee could maintain a claim for same sex harassment because his harassers’ behavior was "on account of sex"; the fact that they may have been motivated by hostility toward his sexual orientation was irrelevant).
Thus, courts addressing this issue have made a distinction between harassment on the basis of sexual orientation, not protected by Title VII, and harassment "because of sex." For instance, in Simonton v. Runyon, 225 F.3d 122 (2d Cir. 2000), the court denied a postal worker’s sex harassment claim where coworkers who knew he was gay repeatedly insulted him with homophobic remarks, left lewd notes for him in the restroom, put male dolls in his vehicle, and sent copies of Playgirl to his home. Though the court condemned his coworkers’ behavior as morally reprehensible, it found that the harassment occurred because of his sexual orientation and not because of sex as required for a claim of hostile environmental sexual harassment. Compare Nichols v. Azteca Restaurant Enter. Inc., 256 F.3d 864 (9th Cir. 2001) (the systematic abuse directed at the employee reflected the belief that he did not act as a man should act and thus was "because of sex" as required for a hostile environment claim). Employers also should be aware that same-sex harassment may be unlawful under state and local discrimination laws prohibiting discrimination based on sexual orientation. See, e.g., Cal. Govt. Code §12920; D.C. Code §1-2512. Employers should check state and local laws for coverage.
21Sexually Explicit Pictures: A workplace that is permeated by sexually explicit materials and comments may create a "hostile work environment" in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§2000e et seq. (For a definition of hostile environment sexual harassment, see note 19, above.) For example, in Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991), the court found the employer liable for sexual harassment because it told the complaining employee that it had no policy against sexually-oriented pictures since they were a "natural thing" in a shipyard and that shipyards are "a man’s world" where pinups should be expected. The Equal Employment Opportunity Commission ("EEOC"), in its 1990 Policy Guidance on Current Issues of Sexual Harassment, also indicated that pervasive obscene materials in the workplace may create a hostile environment.
Generally, most courts have found that rough language and "girlie" magazines in the workplace are evidence of a hostile work environment. See, e.g., Harley v. McCoach, 928 F. Supp. 533 (E.D. Pa. 1996) (pervasive display of pornography in common areas of the workplace could create an objectively hostile work environment); Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990) (pornographic materials in a workplace are implicitly discriminatory); Jenson v. Eveleth Taconite Co., 824 F. Supp. 847 (D. Minn. 1993) (posting sexually-oriented materials in the common areas of a workplace may serve as evidence of a hostile environment regardless of whether the materials refer to men or women or both). But see Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986) (Title VII was not meant to improve workplace situations in which rough language and girlie magazines are the norm). Accordingly, employers also should prohibit the display or dissemination of all sexually-oriented material, including electronically recorded and transmitted messages of a nonpersonal sexual nature. (See note 4, above.)
22Investigation, Evaluation, and Resolution of Complaints: A swift, accurate, and appropriate resolution of sexual harassment complaints by the employer can limit damages or, in the case of hostile environment claims, shield the employer from liability. (See note 7, above, for information about the practical considerations involved in investigating and resolving complaints.) Employers should be aware that the Federal Trade Commission ("FTC"), which administers the Fair Credit Reporting Act ("FCRA"), has issued nonbinding, informal letter rulings holding that third parties such as law firms that regularly conduct sexual harassment investigations for clients may be consumer reporting agencies under the FCRA. According to the FTC, employers using an outside party to conduct investigations therefore must comply with the notice and consent procedures of the FCRA before initiating such investigations. See Keller-Vail Opinion Ltr. (4/5/99). The FTC also recommends having all current employees and new hires sign consent forms in advance to avoid having to request consent at the time an employee is already under investigation. See Medine-Meisinger Opinion Ltr. (8/31/99). However, a few lower federal courts have challenged the FTC’s position. See, e.g., Hartman v. Lisle Park District, 158 F. Supp. 2d (N.D. Ill. 2001), the court found the FTC’s informal opinion letters were unpersuasive and determined that the FCRA is not intended to apply to a report prepared by an attorney as part of an investigation regarding an employee’s actions. Note, though, that other courts may still choose to follow the FTC’s opinion letters. So, employers that use outside parties to conduct an internal harassment investigation will need legal advice on whether they must follow the FCRA’s rules. (For further information on the FCRA, see Hiring, page 202:28, note 24.)
The following information from court decisions gives some insight into the employer’s duty to respond to sexual harassment complaints. As the cases illustrate, each incidence of sexual harassment should be investigated, evaluated, and resolved promptly. The employer also should act quickly to limit contact between the complaining employee and the alleged harasser.
Insufficient response by the employer. It is very clear that delays in investigation and response to complaints of sexual harassment will be counted against the employer by the courts. Furthermore, the Equal Employment Opportunity Commission ("EEOC") Guidelines on Discrimination Because of Sex (1980) state that an employer will be liable for sexual harassment when it fails to take "immediate and appropriate corrective action." 29 C.F.R. §1604.11(d). An employer acts unreasonably if it delays unduly or if the action it takes is not reasonably likely to prevent the misconduct from recurring.
For example, in Carr v. Allison Gas Turbine Div., Gen. Motors Corp, 32 F.3d 1007 (7th Cir. 1994), the court found that the employer did not take appropriate remedial action when harassment was brought to its attention because it delayed taking action on the employee’s complaints, it was uncertain whether its policies and posters concerning sexual harassment were ever distributed, and it did not discipline or even reprimand anyone for the harassment. See also Henderson v. Simmons Food, Inc., 217 F.3d 612 (8th Cir. 2000) (the record showed that the employer deliberately downplayed the complainant’s allegations of harassment, contributed to the escalation of the hostile work environment, and conducted only a half-hearted investigation of her claims; thus, the employer not only failed to take prompt and effective remedial action but also acted with reckless indifference to the rights of its employee justifying an award of punitive damages). Furthermore, an employer does not satisfy the requirement of an appropriate remedy by transferring the complaining employee to a less desirable position in order to separate her from the harasser. See Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994) (the employer was liable after it transferred a harassed blackjack dealer to a less desirable day shift to remove her from the supervision of the harassing employee).
Sufficient response by the employer. In contrast, an employer that acts quickly may be able to avoid liability for claims of hostile work environment. See, e.g., Robinson v. Valmont Industries, 238 F. 3d 1045 (8th Cir. 2001) (the employer was not liable when it immediately investigated incidents of harassment, promptly imposed a three-day suspension and issued a written warning to confirmed perpetrators, encouraged witnesses to come forward, and installed a surveillance camera to identify unidentified culprits); Tutman v. WBBM-TV, 209 F.3d 1044 (7th Cir. 2000) (the employer was not liable for a racially hostile work environment because it took "prompt and appropriate" action to remedy the harassment, including reporting the incidents to supervisors, conducting an immediate investigation, and issuing a written disciplinary warning); Montero v. AGCO Corp., 192 F.3d 856 (9th Cir. 1999) (the employer was not liable for sexual harassment because its response to a complaint was "swift and certain;" it took only 11 days to complete the investigation, terminate the manager and discipline supervisors involved, and meet with all employees involved to make clear that it would not tolerate retaliation against the employee for complaining).
Proper disciplinary action. Once harassment has been discovered in the workplace, most courts agree that employers must take appropriate remedial action "reasonably calculated to prevent further harassment" in order to escape liability under Title VII. See, e.g., Crowley v. L. L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002) (the employer could not be considered to have taken prompt and appropriate action where it reinstituted the same inadequate remedial measures it took in response to prior incidents of harassment involving the same parties); Knabe v. Boury Corp., 114 F.3d 407 (3rd Cir. 1997) (the court determined that even if the investigation was inadequate, the employer will not be liable if the remedial action taken as a result of the investigation was reasonably calculated to prevent further harassment). However, courts typically do not prescribe the specific punishment or require employers to take into account what the complaining employee may want. In fact, appropriate action may not necessarily be the most severe form of discipline available. See Star v. West, 237 F.3d 1036 (9th Cir. 2001) (counseling an employee and moving him to a different shift was a sufficient response to a sexual harassment complaint since the harassment stopped after the actions were taken).
Preventing claims of retaliation. Whatever the outcome of the investigation, employers must ensure that neither the complainant nor any party who assisted in the investigation suffers further harassment or adverse employment action on account of the complaint or the investigation. Otherwise, the employer may be liable for claims such as retaliation, intentional infliction of emotional distress, and wrongful or constructive discharge. Employees increasingly include retaliation claims as part of their underlying discrimination complaints and often succeed on those claims even if their discrimination claims are dismissed. See, e.g., Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976 (7th Cir. 2000) (the court affirmed the dismissal of the employee’s sexual harassment claim but allowed her to go forward with her retaliation claim).