TABLE OF AUTHORITIES. ii
STATEMENT OF INTEREST.. 1
STATEMENT OF THE ISSUES. 1
STATEMENT OF THE CASE.. 2
A. Factual Background. 2
B. Procedural Background. 3
ARGUMENT.. 5
The District Court Misunderstood the
Governing Legal Principles When It Analyzed Roberts’s Sexual Harassment
Claim. 5
A. A plaintiff may establish that same-sex
harassment was based on sex using evidentiary routes beyond the three
identified in Oncale. 5
B. The district court erred to the extent it
concluded that facially neutral physical conduct cannot be based on sex. 12
C. The Company cannot escape liability merely
because Roberts did not complain directly to the Company’s CEO. 14
1. The Company did not
show as a matter of law that it exercised reasonable care to prevent and
correct sexual harassment. 16
2. The Company did not
establish as a matter of law that Roberts unreasonably failed to take
advantage of any of its corrective opportunities or to avoid harm otherwise. 20
CONCLUSION.. 25
CERTIFICATE OF COMPLIANCE.. 26
CERTIFICATE OF SERVICE
Page(s)
Cases
Alfano v. Costello,
294 F.3d 365 (2d Cir. 2002)........................................................ 12
Barrett v. Applied Radiant
Energy Corp.,
240 F.3d 262 (4th Cir. 2001)....................................................... 17
Bibby v. Phila. Coca Cola
Bottling Co.,
260 F.3d 257 (3d Cir. 2001).................................................... 9, 10
Brown v. Perry,
184 F.3d 388 (4th Cir. 1999).......................................... 16, 17, 19
Burlington Indus., Inc. v.
Ellerth,
524 U.S. 742 (1998)................................................................. passim
Cerros v. Steel Techs., Inc.,
398 F.3d 944 (7th Cir. 2005)....................................................... 22
Conner v. Schrader-Bridgeport
Int’l, Inc.,
227 F.3d 179 (4th Cir. 2000)................................................ 12, 13
Crockett v. Mission Hosp., Inc.,
717 F.3d 348 (4th Cir. 2013)....................................................... 22
Dooley v. Capstone Logistics,
LLC,
No. 18-1835, 2019 WL 1715978 (4th Cir. Apr. 16, 2019)....... 8
Dowdy v. North Carolina,
23 F. App’x 121 (4th Cir. 2001)........................................... 22, 23
EEOC v. Boh Bros. Constr. Co.,
731 F.3d 444 (5th Cir. 2013) (en banc)................................ 9, 10
EEOC v. Cromer Food Servs.,
Inc.,
414 F. App’x 602 (4th Cir. 2011)......................................... 18, 24
EEOC v. Fairbrook Med. Clinic,
P.A.,
609 F.3d 320 (4th Cir. 2010)....................................................... 20
EEOC v. Nat’l Educ. Ass’n,
Alaska,
422 F.3d 840 (9th Cir. 2005)....................................................... 12
EEOC v. Sunbelt Rentals, Inc.,
521 F.3d 306 (4th Cir. 2008).................................................. 6, 24
Faragher v. City of Boca Raton,
524 U.S. 775 (1998)................................................................. passim
Freeman v. Dal-Tile Corp.,
750 F.3d 413 (4th Cir. 2014)....................................................... 24
Harris v. Forklift Sys.,
510 U.S. 17 (1993)........................................................................... 5
Holland v. Big River Minerals
Corp.,
181 F.3d 597 (4th Cir. 1999)....................................................... 16
Howard v. Winter,
446 F.3d 559 (4th Cir. 2006)....................................................... 24
Jensen v. Potter,
435 F.3d 444 (3d Cir. 2006)........................................................ 13
Kaytor v. Elec. Boat Corp.,
609 F.3d 537 (2d Cir. 2010).................................................. 12, 14
Lack v. Wal-Mart Stores, Inc.,
240 F.3d 255 (4th Cir. 2001)......................................................... 8
McDowell v. Nucor Bldg. Sys.,
475 F. App’x 462 (4th Cir. 2012)............................................... 11
McDowell v. Nucor Bldg. Sys.,
No. 3:10-cv-172, 2012 WL 714632 (D.S.C. Feb. 29, 2012).. 11
Medina v. Income Support Div.,
413 F.3d 1131 (10th Cir. 2005)..................................................... 9
Meritor Sav. Bank, FSB v.
Vinson,
477 U.S. 57 (1986)........................................................................... 5
Mikels v. City of Durham,
183 F.3d 323 (4th Cir. 1999)....................................................... 23
Minor v. Bostwick Labs., Inc.,
669 F.3d 428 (4th Cir. 2012)......................................................... 8
Nichols v. Azteca Rest.
Enters., Inc.,
256 F.3d 864 (9th Cir. 2001)....................................................... 24
Ocheltree v. Scollon Prods.,
Inc.,
335 F.3d 325 (4th Cir. 2003) (en banc)................. 15, 17, 18, 23
Oncale v. Sundowner Offshore
Servs., Inc.,
523 U.S. 75 (1998)................................................................... passim
Passananti v. Cook Cty.,
689 F.3d 655 (7th Cir. 2012)....................................................... 22
Pedroza v. Cintas Corp.,
397 F.3d 1063 (8th Cir. 2005)....................................................... 9
Raniola v. Bratton,
243 F.3d 610 (2d Cir. 2001)........................................................ 13
Shanoff v. Ill. Dep’t of Human
Servs.,
258 F.3d 696 (7th Cir. 2001)....................................................... 13
Shepherd v. Slater Steels
Corp.,
168 F.3d 998 (7th Cir. 1999).................................................. 9, 10
Smith v. First Union Nat’l
Bank,
202 F.3d 234 (4th Cir. 2000)................................................ 15, 20
Spriggs v. Diamond Auto Glass,
242 F.3d 179 (4th Cir. 2001)................................................ 19, 20
Varner v. Nat’l Super Mkts.,
Inc.,
94 F.3d 1209 (8th Cir. 1996)................................................ 18, 24
Vickers v. Fairfield Med. Ctr.,
453 F.3d 757 (6th Cir. 2006)....................................................... 10
Villa v. CavaMezze Grill, LLC,
858 F.3d 896 (4th Cir. 2017)......................................................... 2
Wasek v. Arrow Energy Servs.,
Inc.,
682 F.3d 463 (6th Cir. 2012)....................................................... 10
White v. BFI Waste Servs., LLC,
375 F.3d 288 (4th Cir. 2004)................................................ 15, 20
Whitten v. Fred’s, Inc.,
601 F.3d 231 (4th Cir. 2010)....................................................... 19
Statutes and Rules
Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq............................................................................................... passim
42 U.S.C. § 2000e-2(a).................................................................... 1
42
U.S.C. § 2000e-2(a)(1)............................................................... 5
Fed. R. App. P. 29(a)............................................................................ 1
Other Authorities
EEOC, Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors, No.
915.002, 1999 WL 33305874 (June 18, 1999)............................................. 17, 18
Lindemann, et al., Employment
Discrimination Law 20.II.B.3 (5th ed. 2015)......................................................................................... 10
Restatement (Second) of Agency §
219(2)(d) (1957)................... 23
The Supreme Court, 1997
Term—Leading Cases, 112 Harv. L. Rev. 325 (1998)......................................................................................... 8
The Equal Employment Opportunity Commission
(“EEOC” or “Commission”) is the primary agency charged by Congress with
interpreting and enforcing Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.
Title VII bars most types of discrimination against employees “because of . . .
sex.” Id. § 2000e-2(a).
This appeal raises important questions about the ways a
plaintiff may establish that a supervisor of the same sex harassed him because
of his sex, the type of evidence he may use in making this showing, and the standard
an employer must satisfy to avoid liability for a hostile work environment
created by a supervisor. Because the EEOC has a strong interest in the proper
interpretation of the federal anti-discrimination employment laws, it offers
its views to the Court. Fed. R. App. P.
29(a).
1. In Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 80-81 (1998), the Supreme
Court identified three examples of ways in which a plaintiff could prove that
same-sex harassment occurred because of the victim’s sex. Are there no other
potential means of proof available to survive summary judgment?
2. Is physical abuse that is “not of a sexual nature” never
based on sex, even if perpetrated by an individual who engaged in other abuse
that was overtly sex-based?
3. The defendant-appellee may argue as an alternative ground
for affirmance that it is entitled to the affirmative defense described in Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 765 (1998), and Faragher
v. City of Boca Raton, 524 U.S. 775, 807 (1998), and thus cannot be liable
for its supervisor’s sexual harassment. May the employer escape liability under
this doctrine for harassment the plaintiff reported to the harasser’s
supervisor and to the employer’s vice president and Human Resource Officer
merely because he did not also report it directly to the company’s CEO?
Defendant Glenn Industrial Group, Inc. (“the Company”),
provides underwater inspection and repair services, mostly to utility
companies. JA 213 ¶¶ 3, 6. Plaintiff Chazz Roberts worked for the Company
as a diver or “tender,” a diving assistant.
The Company’s non-office employees are all men. JA 213 ¶ 3.
Roberts alleges that Andrew Rhyner, his supervisor,
continually ridiculed and demeaned him with “sexually explicit and derogatory
remarks,” including calling him “gay” and asking him “how much dicks would [he]
suck for money.” JA 48-49; JA 286-87 ¶¶ 2-3. Roberts also alleges
that Rhyner physically threatened him, slapped him, pushed him, and put him in
a headlock. JA 52-54.
Roberts complained multiple times about Rhyner’s conduct
to Rhyner’s supervisor and to another supervisor. JA 48-49. He also
complained twice to Ana Glenn, who was the Company’s vice president and Human
Resource Officer. Ana Glenn is also the wife of Richard Glenn, the Company’s
CEO. JA 49-50; JA 287 ¶ 4. The Company took no action against Rhyner. JA
437.
Roberts burned his hand at work in March 2016. JA
287-88 ¶ 5. Richard Glenn warned him that another safety incident would
lead to his termination. JA 214 ¶ 10. In April 2016, he was removed
from a worksite after allegedly displaying erratic behavior. JA 214-15 ¶¶ 11,
13; JA 288-89 ¶¶ 7, 10. Roberts passed a drug test, but Richard Glenn
nevertheless terminated him for the incident. JA 215 ¶¶ 12-13; JA 289 ¶¶ 8-10.
Roberts submitted a verified charge to the EEOC alleging sex
discrimination and retaliation. JA 229. In the charge, he complained of his
supervisor “calling [him] gay,” making “numerous sexually explicit negative
comments toward” him, and assaulting him. Id.
After its investigation, the EEOC sent him a right-to-sue letter.
JA 230-31. Roberts subsequently filed this suit, alleging, as relevant here,
sexual harassment and retaliation in violation of Title VII. JA 1-7.
The district court granted the Company summary judgment.
JA 443-49. As relevant here, the court rejected Roberts’s claim that his male
supervisor harassed him on the basis of sex in violation of Title VII. The court stated that in Oncale, “the Supreme Court identified
three situations that may support a same-sex claim of harassment based on
gender: (1) the plaintiff presents credible evidence that the alleged harasser
is homosexual and made ‘explicit or implicit proposals of sexual activity’; (2)
the plaintiff shows that the harasser was motivated by general hostility to the
presence of members of the same sex in the workplace; or (3) the plaintiff
offers ‘direct comparative evidence about how the alleged harasser treated
members of both sexes in a mixed-sex workplace.’” JA 447 (quoting Oncale, 523 U.S. at 80-81). The court
granted the Company summary judgment on the harassment claim because it
concluded that none of the three “Oncale
situations” applied. Id.
With respect to the “second and third Oncale situations,” the district court
observed that: (a) the record contained no evidence that Rhyner was hostile
toward men in the workplace; and (b) the worksites were all male, precluding a
comparative assessment. Id. Regarding
“the first Oncale situation,” the
court noted that the record suggested that Rhyner was straight. Id. The court further observed that,
although Rhyner’s alleged comments were “certainly vulgar and inappropriate, . . . none
could be characterized as a proposal of sexual activity.” Id. The court also concluded that Rhyner’s
slapping and choking Roberts was “inappropriate” but “not of a sexual nature,”
supporting its dismissal of the sexual harassment claim. Id.
Title VII prohibits employers
from “discriminat[ing] against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of . . . sex.”
42 U.S.C. § 2000e-2(a)(1). It is
well settled that a plaintiff may establish a Title
VII violation “by proving that discrimination based on sex has created a
hostile or abusive work environment.” Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). “For sexual harassment
to be actionable, it must be sufficiently severe or pervasive to alter the
conditions of the victim’s employment.” Id.
at 67 (internal citation and alterations omitted); see also Harris v. Forklift Sys., 510 U.S. 17, 21
(1993); EEOC v. Sunbelt Rentals, Inc.,
521 F.3d 306, 313 (4th Cir. 2008) (holding that Title VII forbids discriminatorily hostile
working environments).
In Oncale,
the Supreme Court held that Title VII’s prohibition against sex-based hostile
working environments applies even when both the plaintiff and the harasser are
of the same sex. Oncale, 523 U.S.
at 79. Responding to concerns “that recognizing liability for same-sex
harassment will transform Title VII into a
general civility code for the American workplace,” the Court emphasized that “Title VII does not prohibit all verbal or
physical harassment in the workplace; it is directed only at ‘discriminat[ion]
. . . because of . . . sex.’” Id. at 80 (alterations in original). The
Court offered three examples of situations that could support an “inference of
discrimination” based on sex in the same-sex harassment context: (1) when the harasser
is homosexual and the harassing conduct involves explicit or implicit proposals
of sexual activity; (2) when the “sex-specific and derogatory terms” of the
harassment indicate “general hostility to the presence of [the victim’s sex] in
the workplace”; and (3) when comparative evidence shows that the harasser
treated members of one sex worse than members of the other sex. Id. at 80-81. “Whatever evidentiary route
the plaintiff chooses to follow,” the Court concluded, “he or she must always
prove that the conduct at issue was not merely tinged with offensive sexual
connotations, but actually constituted ‘discrimina[tion] . . .
because of . . . sex.’” Id.
at 81.
The defendant in this case argued that the three examples
identified in Oncale were exclusive,
see R.18 at 4-5, and the district
court appeared to treat them as such. After addressing each “Oncale situation” and finding all three inapplicable
to the facts of the case, the court rejected Roberts’s sexual harassment
claim. JA 447 (noting the general hostility toward men and differential
comparative treatment examples are “not applicable” to the factual scenario
presented and rejecting the claim after finding insufficient credible evidence
that Rhyner was gay or proposed sexual activity).
Nothing in Oncale
indicates that the Supreme Court meant to treat these three examples as the only
ways to demonstrate that same-sex harassment is sex-based discrimination,
however. 523 U.S. at 80. Instead, the
Court touched on the “easy” inference involved in the homosexual harassment
scenario, posited general hostility toward the victim’s gender in the workplace
as an alternative “example,” and described direct comparative evidence of sex
bias as a clear third type of evidence. Id.
at 80-81. The Court concluded this discussion by emphasizing the importance of
showing discrimination because of sex, “[w]hatever evidentiary route the
plaintiff chooses to follow.” Id.
at 81.
Further illustrating that the three examples are not
exclusive, the claim in Oncale
itself was not susceptible to any of the three suggested forms of proof. The
case involved an oil platform roustabout who “was forcibly subjected to
sex-related, humiliating actions against him by [supervisors and a co-worker]
in the presence of the rest of the crew,” was “physically assaulted . . .
in a sexual manner,” and received rape threats. Id. at 77. As described by the Supreme
Court, the evidence did not indicate that the harassers were homosexual, that
they were hostile to the presence of men on the oil platform, or that they
treated women differently (much like the dive sites in this case, there were no
women on the oil platform). Id.; see
also The Supreme Court, 1997
Term—Leading Cases, 112 Harv. L. Rev. 325, 332 & n.69 (1998) (“Oncale itself provides a clear example of
the shortcomings of the restrictive examples used in the Court’s approach.
. . . The pleadings suggest that Oncale was singled out for
abuse because he failed to live up to his supervisor’s stereotyped notion of
masculinity.”); cf. Oncale,
523 U.S. at 76-77 (noting that “[t]he precise details” of the case “are
irrelevant to the legal point we must decide”). Nevertheless, the Court
reversed the grant of summary judgment for the employer and remanded the case
to give the plaintiff the opportunity to argue that the harassment he suffered
constituted discrimination “because of . . . sex.” Id. at 81-82.
The Fourth Circuit has not yet addressed this issue in a
published opinion.
But nearly every circuit to consider the issue has concluded that Oncale’s
three examples are illustrative and not intended to provide an exhaustive list
of ways to prove that same-sex harassment was based on sex. See, e.g., Bibby v. Phila. Coca Cola Bottling Co.,
260 F.3d 257, 264 (3d Cir. 2001) (recognizing a potential cause of action when
same-sex harassment is based on the victim’s failure to conform to the
harasser’s sex stereotypes and noting that, “[b]ased on the facts of a
particular case and the creativity of the parties, other ways in which to prove
that harassment occurred because of sex may be available”); EEOC v. Boh Bros. Constr. Co., 731 F.3d
444, 455-56 (5th Cir. 2013) (en banc) (“Every circuit to squarely consider the
issue has held that the Oncale
categories are illustrative, not exhaustive, in nature. Considering that [Oncale] used ‘for example’ and ‘[w]hatever
evidentiary route the plaintiff chooses to follow’ in its discussion of those
categories, we agree.” (quoting Oncale,
523 U.S. at 80-81)); Shepherd v. Slater
Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999) (“[W]e discern nothing in
the Supreme Court’s decision indicating that the examples it provided were
meant to be exhaustive rather than instructive.”); Pedroza v. Cintas Corp., 397 F.3d 1063,
1068 (8th Cir. 2005) (“[T]he Supreme Court set forth a non-exhaustive list that
included three possible evidentiary routes same-sex harassment plaintiffs may
follow to show that harassment was based on sex.”); Medina v. Income Support Div., 413 F.3d
1131, 1135 (10th Cir. 2005) (explaining that Oncale’s three evidentiary
routes “are not exhaustive”).
The leading treatise on employment discrimination likewise explains that the
“evidentiary route[s]” suggested in Oncale
are “nonexclusive.” Lindemann et al., Employment
Discrimination Law 20.II.B.3 (5th ed. 2015).
This point is not merely theoretical. Numerous forms of
proof — beyond the three forms identified in Oncale — may be available to plaintiffs
seeking to show that same-sex harassment was based on sex. For example, both Bibby and Boh Brothers expressly
recognized that a plaintiff may establish that harassment was because of sex if
he can show that it occurred because of the plaintiff’s failure to conform to
the harasser’s sex stereotypes. Bibby,
260 F.3d at 264; Boh Bros., 731
F.3d at 456. So long as the plaintiff can show the harassing conduct occurs
because of sex, he is not otherwise limited in the form of proof he offers. Bibby, 260 F.3d at 264; Shepherd, 168 F.3d at 1009 (“The Court’s
focus was on what the plaintiff must ultimately prove rather than the methods
of doing so. Indeed, the Court has previously made clear that the means of
proving discrimination cannot be reduced to rigid formulae.” (citing O’Connor
v. Consol. Coin Caterers Corp., 517 U.S. 308, 311-13 (1996); Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978))).
In support of its apparent conclusion that Oncale’s
three examples are exclusive, the district court cited an unpublished district
court decision, McDowell v. Nucor
Building System, No. 3:10-cv-172, 2012 WL 714632 (D.S.C. Feb. 29, 2012).
But McDowell did not hold that
proof that same-sex harassment is based on sex is limited to the three Oncale examples. Instead, it simply noted
the three examples “identified” in Oncale,
stated that the magistrate judge concluded that the plaintiff “appear[ed] to
rely [on] the first scenario,” and reiterated the magistrate judge’s determination
that the plaintiff produced insufficient evidence of homosexuality or proposed
sexual activity to support his claim. Id.
at *6. The district court then rejected the plaintiff’s objections to the
magistrate judge’s report and recommendation. Id. at *7. Even if McDowell did stand for the proposition
that plaintiffs alleging same-sex harassment are limited to one of the three
forms of proof outlined in Oncale,
moreover, that unsupported conclusion would not bind this Court.
After summarizing Roberts’s evidence of Rhyner’s slapping
and choking him, the district court concluded that this material was not
relevant to his sexual harassment claim because it was “not of a sexual nature.”
JA 447. As this Court has explained, however, “[a]ctionable discrimination
includes conduct ‘because of’ the victim’s gender, which is broader than
conduct of a ‘sexual nature.’” Conner
v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 192 n.16 (4th Cir. 2000).
When an employee brings a sexual harassment claim based
on both conduct that is facially sex-based and conduct that is facially
neutral, a court errs if it categorically refuses to consider the facially
neutral conduct. To the contrary, “[f]acially neutral incidents may be
included . . . among the ‘totality of the circumstances’ that courts
consider in any hostile work environment claim, so long as a reasonable
fact-finder could conclude that they were, in fact, based on sex.” Alfano v. Costello, 294 F.3d 365, 378 (2d
Cir. 2002); see also, e.g., EEOC
v. Nat’l Educ. Ass’n, Alaska, 422 F.3d 840, 844 (9th Cir. 2005). When the
same individual engages in multiple instances of abusive behavior, some overtly
sex-based and some not, courts may consider all of the actions as part of a
pattern of discriminatory behavior. See, e.g., Kaytor v. Elec. Boat Corp., 609 F.3d 537,
547-48 (2d Cir. 2010) (“Circumstantial evidence that facially sex-neutral
incidents were part of a pattern of discrimination on the basis of gender may
consist of evidence that the same individual engaged in multiple acts of
harassment, some overtly sexual and some not.” (internal citation omitted)); Jensen v. Potter, 435 F.3d 444, 450 (3d
Cir. 2006) (explaining that it is “improper to isolate incidents of facially
neutral harassment and conclude, one by one, that each lacks the required
discriminatory animus”), overruled in part on other grounds by Burlington
N. & Santa Fe Ry. v. White, 548 U.S. 53, 67-68 (2006); Shanoff v. Ill. Dep’t of Human Servs., 258
F.3d 696, 705 (7th Cir. 2001) (holding that a reasonable person could conclude
that an individual’s facially neutral remarks were discriminatory).
Indeed, in Conner,
this Court held that a district court evaluating a sexual harassment claim
erred when it distinguished between facially sex-based conduct (which it found
was discriminatory) and facially neutral conduct (which it found was not). 227 F.3d at 192 n.16, 193-94 (noting that the
district court correctly concluded that the comments “Are you on the rag?” and
“Didn’t you get any last night?” were discriminatory, but incorrectly
disregarded other facially neutral conduct, including mocking behavior and
burdensome work assignments); see also, e.g., Raniola v. Bratton, 243 F.3d 610, 621-23
(2d Cir. 2001) (holding that a reasonable jury could conclude that a
supervisor’s entire alleged pattern of harassment against the plaintiff was
motivated by her gender, even though some of the harassment was not specifically
sex-based, given the overtly discriminatory nature of other aspects of the
harassment).
As explained above, the district court in this case confined
its inquiry of Roberts’s sexual harassment claim to the questions whether his
supervisor was gay and had proposed sexual activity. The court addressed
Roberts’s allegations of physical abuse only within that narrow context. The
court’s failure to evaluate more broadly whether Roberts had shown that his
supervisor’s conduct — including his physical abuse — was based on sex
constitutes error. “[E]specially in the context of a claim of sexual
harassment, where state of mind and intent are at issue, the court should not
view the record in piecemeal fashion.” Kaytor,
609 F.3d at 548 (citation omitted).
In its summary judgment briefing, the Company argued that
even if Rhyner’s conduct created an actionable hostile work environment,
liability could not be imputed to the Company. R.18 at 8-9. According to the Company, Roberts
could not prevail on his sexual harassment claim because he did not complain
directly to the Company’s CEO, as ostensibly required under the Company’s
anti-harassment policy. Id. In
the event the Company reasserts that argument on appeal as an alternative
ground for affirmance, this Court should reject it because it misinterprets the
law governing employer liability for supervisor harassment.
In Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S.
775 (1998), the Supreme Court held that employers are generally vicariously
liable when a “supervisor” with authority over an employee creates an
actionable hostile work environment. Ellerth,
524 U.S. at 765; Faragher, 524 U.S.
at 807. In the absence of a “tangible employment action,” however, an employer
may raise an “affirmative defense” to liability or damages if it can prove “two
necessary elements: (a) that [it] exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and (b) that the plaintiff
employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765; see also Faragher, 524 U.S. at 807. As Ellerth and Faragher make clear, an employer must
prove both elements to avail itself of the defense. Id.; see also, e.g., White v. BFI Waste Servs., LLC, 375 F.3d
288, 299 (4th Cir. 2004); Smith v.
First Union Nat’l Bank, 202 F.3d 234, 244, 246 (4th Cir. 2000).
When the employee who creates a hostile work environment
is not a supervisor, a less “stringent” standard applies: an employer is liable
only “where its own negligence is a cause of the harassment.” Ellerth, 524 U.S. at 759 (noting that
“[n]egligence sets a minimum standard for employer liability under Title VII”). “An employer is negligent with
respect to sexual harassment if it knew or should have known about the conduct
and failed to stop it.” Id.; see
also, e.g., Ocheltree v. Scollon
Prods., Inc., 335 F.3d 325, 333-34 (4th Cir. 2003) (en banc).
In its summary judgment briefing, the Company conceded
that Rhyner was Roberts’s “supervisor” for purposes of the legal standards set
forth in Ellerth and Faragher. R.18 at 8. Assuming arguendo that Roberts’s
termination is not a “tangible employment action” that was sufficiently
connected to the harassment and that the Company was entitled to raise an Ellerth/Faragher
affirmative defense, it failed to establish either of the defense’s necessary
elements.
Although the Company had the burden to establish that it
“exercised reasonable care to prevent and correct promptly any sexually
harassing behavior,” Ellerth, 524
U.S. at 765, its summary judgment briefing offered no argument on this element
of the Ellerth/Faragher affirmative defense. R.18 at 9. The defense should be rejected on
this basis alone. See Holland
v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir. 1999).
Even if the Company’s statement that it “has a
comprehensive sexual harassment policy in its handbook” were sufficient to
preserve an argument on the first element of the defense, the argument misses
the mark. R.18 at 9. As this Court has
explained, “mere promulgation of such a policy may well fail to satisfy the
employer’s burden.” Brown v. Perry,
184 F.3d 388, 396 (4th Cir. 1999). The employer “must act reasonably, and thus
any policy adopted by the employer must be both reasonably designed and
reasonably effectual.” Id.
The Company contends that its policy required all
employees to report claims of sexual harassment directly to its CEO. See
R.18 at 9; JA 220; but see infra
pp. 20-22. To the extent that statement accurately characterizes the policy,
the policy was not “reasonably designed.” Brown,
184 F.3d at 396. As the EEOC has explained in its enforcement guidance, in
order to discharge its duty of reasonable care, an employer should “provide
accessible points of contact for the initial complaint” and ensure that “there
are no unreasonable obstacles to complaints.” EEOC,
Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors, No. 915.002, 1999 WL 33305874, at *10 (June 18, 1999) (“EEOC
Guidance”). “When an employee complains to management about alleged
harassment,” moreover, “the employer is obligated to investigate the allegation
regardless of whether it conforms to a particular format.” Id.; cf. Barrett v. Applied Radiant Energy Corp.,
240 F.3d 262, 266 (4th Cir. 2001) (concluding employer exercised reasonable
care with respect to its anti-harassment policy because, inter alia, it
“encouraged [employees] to contact any member of the management team
. . . with whom [the employee] felt comfortable,” and many managers
“worked in the same building” as the plaintiff and “were readily accessible”).
This Court’s en banc decision in Ocheltree further buttresses these
conclusions. 335 F.3d at 334-35. Ocheltree addressed the related issue whether
an employer had established “reasonable complaint procedures” in the context of
a claim that it was negligent in responding to co-worker harassment. Id. The policy at issue in that case
required complaining employees to discuss any problems with their immediate
supervisor and, if dissatisfied with the supervisor’s resolution, to complain
to the company’s president or vice president. Id. This Court criticized the policy
because, inter alia, a victim “may be more reluctant to register [her]
complaint with a top company official.” Id.
at 335. Thus, the policy “seem[ed] ill designed to ensure that upper
management learns of harassment.” Id.;
see also EEOC v. Cromer Food
Servs., Inc., 414 F. App’x 602, 607-08 (4th Cir. 2011) (noting that a
company policy requiring the submission of complaints directly to the president
was “somewhat questionable” because “[a]n employee might easily be intimidated
and fail to report [harassment]”).
Similarly, the Company’s policy is flawed to the extent
it does not impose a duty on supervisors “to address or report to appropriate
officials complaints of harassment regardless of whether they are officially
designated to take complaints.” EEOC Guidance, 1999 WL 33305874, at *14. Indeed, Ocheltree held that a reasonable jury
could base a finding of employer negligence in part on the fact that the
employer’s complaint procedure “fails to place any duty on supervisors to
report incidents of sexual harassment to their superiors.” 335 F.3d at 334; see also Varner v. Nat’l Super Mkts., Inc., 94 F.3d
1209, 1214 (8th Cir. 1996) (“[A] procedure that does not require a supervisor
who has knowledge of an incident of sexual harassment to report that
information to those who are in a position to take appropriate action falls
short of that which might absolve an employer of liability.”). The Company’s policy
describes no such duty for supervisors. JA 217-22.
In any event, “the ‘mere promulgation’ of an
anti-harassment policy, no matter how well-conceived, will not suffice to show
the requisite level of care where the employer has administered the policy in
bad faith or has rendered it ineffectual by acting unreasonably,” including by
unreasonably responding to harassment complaints. Spriggs v. Diamond Auto Glass, 242 F.3d
179, 187-88 (4th Cir. 2001); see also Brown, 184 F.3d at 396. The record here
contains evidence that the Company’s responses to Roberts’s many complaints about
Rhyner’s behavior were unreasonable. Roberts complained on multiple occasions
to Rhyner’s supervisor, but the supervisor allegedly responded by telling
Roberts to “suck it up.” JA 48-49. Roberts also complained twice to Ana
Glenn, the Company’s vice president and Human Resource Officer, but she
apparently took no action. JA 49-50, 287, 431; cf. JA 188 (stating that
Ana Glenn was the Company’s Chief Financial Officer).
Under this Court’s well-established precedent, because the
Company did not address Roberts’s harassment complaints, it failed to exercise
reasonable care to “prevent and correct promptly any sexually harassing
behavior.” Ellerth, 524 U.S. at
765 (emphasis added); see, e.g., Whitten
v. Fred’s, Inc., 601 F.3d 231, 251 (4th Cir. 2010) (holding employer was
not entitled to affirmative defense as a matter of law because of inadequate
response by management official to whom the plaintiff complained), overruled on other grounds by Vance v. Ball State Univ., 570 U.S. 421 (2013); White, 375 F.3d at
299-300 (denying affirmative defense to employer because nothing was done
in response to the plaintiffs’ harassment complaints); Spriggs, 242 F.3d at 187-88 (holding that
a rational jury could conclude that affirmative defense was unavailable because
the employer “unreasonably failed to correct [the harasser’s] offending
behavior”); EEOC v. Fairbrook Med.
Clinic, P.A., 609 F.3d 320, 331 (4th Cir. 2010); Smith, 202 F.3d at 245-46. The Company
therefore did not satisfy its burden on the first element of the Ellerth/Faragher
defense and is not entitled to summary judgment on that ground.
Because the Company did not satisfy its burden on the
first element of the Ellerth/Faragher defense, that defense
necessarily fails, and this Court need not reach the question whether the
Company satisfied its burden on the second element. See, e.g., Smith, 202 F.3d at 244, 246. In any
event, the Company did not show as a matter of law that Roberts “unreasonably
failed to take advantage of any preventive or corrective opportunities provided
by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765. The Company’s
only argument on this point — that its anti-harassment policy required that “sexual
harassment complaints be reported directly to Mr. Glenn, the CEO,” and
that Roberts failed to do so, R.18 at 8-9
— falters on numerous grounds.
Contrary to the Company’s contention, Roberts followed
the Company’s anti-harassment policy when he complained about Rhyner’s conduct
to numerous management officials, including Rhyner’s supervisor and the vice
president of the Company. JA 48-49; JA 287 ¶ 4. Although the policy
states that an employee with “any concern that our No Harassment policy may
have been violated . . . must immediately report the matter” to the
CEO, JA 220, the policy also repeatedly indicates that employees have multiple
members of management to whom they may complain. It instructs individuals with
“equal employment opportunity related questions” to contact “the Vice President
or any other designated member of management.” JA 217. In addition, employees
with questions about harassing behavior may speak to their “immediate
supervisor or one of the contacts listed in this policy.” JA 219. More
generally, employees with problems are told to speak to their “direct
supervisor,” after which they can “request a meeting with the Vice President.”
JA 222. Finally, the policy states, “If at any time you do not feel
comfortable speaking with your direct supervisor or the next level management,
discuss your concern with any other member of management with whom you feel
comfortable.” Id. Given these
numerous references to multiple management personnel empowered to receive
complaints about harassing behavior, Roberts did not “unreasonably fail[] to
take advantage of any preventive or corrective opportunities provided by the
employer” when he complained to his harasser’s supervisor and to the Company’s vice
president and Human Resource Officer. Ellerth,
524 U.S. at 765.
Even if Roberts were required under the policy to bring
his concerns directly to the CEO, the Company cannot show that his failure to
“take advantage” of that opportunity was “unreasonabl[e],” as required for the
Company to prevail on the second element of the affirmative defense. Ellerth, 524 U.S. at 765; see also id. (noting that “a demonstration of” an “unreasonable
failure to use any complaint procedure provided by the employer” will “normally
suffice to satisfy the employer’s burden under the second element of the
defense” (emphasis added)). “At the end of the day, the critical question” is
whether the Company “was put on notice of the misconduct, not how the employer
came to have that knowledge.” Passananti
v. Cook Cty., 689 F.3d 655, 674 (7th Cir. 2012) (citation omitted); Cerros v. Steel Techs., Inc., 398 F.3d
944, 952 (7th Cir. 2005) (“The relevant inquiry is . . . whether
the employee adequately alerted her employer to the harassment, thereby
satisfying her obligation to avoid the harm, not whether she followed the
letter of the reporting procedures set out in the employer’s harassment
policy.”).
This Court’s precedents governing employer liability for
co-worker harassment are instructive. Co-workers, unlike supervisors, are not
aided in their harassment by the additional authority of their position. See
Ellerth, 524 U.S. at 758-60
(discussing Restatement (Second) of Agency
§ 219(2)(d) (1957)). Thus, employers are liable for co-worker harassment
only if they were negligent in addressing the harassment. Ocheltree, 335 F.3d at 333-34.
“Negligence sets a minimum standard for employer liability under Title VII,” and the negligence standard is
less “stringent” than the affirmative defense relating to supervisor harassment
at issue here. Ellerth, 524
U.S. at 759; see also Mikels v. City of
Durham, 183 F.3d 323, 332 (4th Cir. 1999).
Even under this Court’s precedents evaluating whether an
employer was negligent in addressing co-worker harassment, “[k]nowledge of
harassment can be imputed to an employer if a reasonable [person], intent on
complying with Title VII, would have known
about the harassment.” Ocheltree, 335
F.3d at 334 (alteration in original) (citation omitted). Employers thus
“cannot avoid Title VII
liability . . . by adopting a ‘see no evil, hear no evil’
strategy.” Id. Instead, “an
employer may be charged with constructive knowledge of coworker harassment when
it fails to provide reasonable procedures for victims to register complaints,” id., as is the case here if the Company’s
interpretation of its policy is correct, see supra pp. 20-22.
In addition, under this Court’s negligence precedents,
“[e]vidence of repeated complaints to supervisors and managers” — such as the
evidence here of Roberts’s complaints to the Company’s vice president and
Rhyner’s supervisor, JA 48-50, JA 287 ¶ 4 — “creates a triable issue
as to whether the employer had notice of the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d
306, 320 (4th Cir. 2008); see also, e.g., Freeman v. Dal-Tile Corp., 750 F.3d 413,
423 (4th Cir. 2014) (employer had actual knowledge of harassment through
employee’s supervisor); Howard v.
Winter, 446 F.3d 559, 569 (4th Cir. 2006). These principles hold true even
when an employee complains to an official who was not designated to receive
harassment complaints in the employer’s sexual-harassment policy. See, e.g.,
Cromer Food Servs., 414 F. App’x at
607-08 (holding that employer had notice even though employee “failed to follow
the sexual harassment protocol that required incidents be made known to the
company president”); Varner, 94
F.3d at 1213 (concluding that employer had notice even though employee “failed
to invoke the reporting procedures of [employer’s] sexual harassment policy,” and
explaining that “[t]he relevant question is whether [the employer] knew or
should have known of the harassment and failed to implement prompt and
appropriate corrective action”); Nichols
v. Azteca Rest. Enters., Inc., 256 F.3d 864, 876 n.10 (9th Cir. 2001) (similar).
Because the Company was on notice of the harassment at issue here under this
Court’s less stringent negligence cases, it follows that Roberts reasonably
apprised the Company of the harassment for purposes of the Ellerth/Faragher
affirmative defense.
For the foregoing reasons, the judgment of the district
court should be reversed and the case remanded for further proceedings.
Respectfully submitted,
JAMES L. LEE
Deputy General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
SYDNEY A.R. FOSTER
Assistant General Counsel
/s/ Jeremy D. Horowitz
JEREMY D. HOROWITZ
Attorney
U.S.
Equal Employment
Opportunity Commission
Office of General Counsel
131 M St., N.E., Room 5SW24J
Washington, D.C. 20507
(202) 663-4716
jeremy.horowitz@eeoc.gov
I hereby certify that this brief complies with the typeface,
type-style, and type-volume requirements set forth in Federal Rules of
Appellate Procedure 29(a)(5) and 32(a)(5), (6), and (7)(B). This brief
contains 6,185 words, from the Statement of Interest through the Conclusion, as
determined by Microsoft Word 2016, with a proportionally spaced typeface,
14-point Garamond, for text.
/s/ Jeremy D. Horowitz
JEREMY D. HOROWITZ
Attorney
U.S.
Equal Employment
Opportunity Commission
Office of General Counsel
131 M St., N.E., Room 5SW24J
Washington, D.C. 20507
(202) 663-4716
jeremy.horowitz@eeoc.gov
Dated: May 9, 2019
