Order Code 98-34 A
CRS Report for Congress
Received through the CRS Web
Sexual Harassment and Violence Against Women:
Developments in Federal Law
Updated May 25,2000
Charles V. Dale
American Law Division
Congressional Research Service U The Library of Congress
Gender-based discrimination,harassment, and violence against women in the workplace and
society generally have assumed new legal and political sigdicance as a consequenceof recent
high profile proceedings involving alleged misdeeds by elected government officials, members
of the military, public school teachers and students, and the private corporate sector. This
report reviews the judicial evolution of sexual harassment law, including a discussion of four
recent US.Supreme Court rulings that dealt with the issue of same-sex harassment and
determined the liability of employers and school districts for harassment by supervisory
employees and acts directed against public school students. This report will be periodically
Sexual Harassment and Violence Against Women:
Developments in Federal Law
Gender-based discrimination, harassment, and violence against women in the
home, workplace, and society at large are continuing topics of legislative and judicial
concern. Legal doctrines condemning the extortion of sexual favors as a condition
of employment or job advancement,and other sexually offensive workplace behaviors
resulting in a "hostile environment," have evolved from judicial decisions under Title
VII of the 1964 Civil Rights Act and related federal laws. The earlier judicial focus
on economic detriment or quid pro quo harassment-making submission to sexual
demands a condition to job benefits-has largely given way to Title VII claims
alleging harassment that creates an "intimidating, hostile, or offensive environment."
In 1994, Congress broke new legal ground by creating a civil rights cause of action
for victims of "crimes of violence motivated by gender." The new law also made it
a federal offense to travel interstate with the intent to "injure, harass, or intimidate"
a spouse, causing bodily harm to the spouse by a crime of violence.
During its 1997-98 term, the U.S. Supreme Court decided four cases involving
a range of issues from the legality of same-sex harassment to the vicarious liability of
employers and a local school district for monetary damages as the result of
harassment by supervisors and teachers. In Oncale v. Sundowner Offshore Services
Inc., the U.S. Supreme Court resolved a conflict among the federal circuit courts by
ruling that sex discrimination consisting of same-sex harassment is actionable under
Title VII.. Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, held
employers vicariously liable for sexual harassment of an employee by a supervisor
with immediate or successively higher authority of that employee. Where the
harassment results in a "tangible employment actionv-such as demotion or
discharge-against the victim, Title VII liability is automatic and no defense is
available to the employer. In cases not involving tangible reprisals or loss of job
benefits, however, the failure of a complaining employee to take advantage of any
anti-harassment policy and procedures made available by the employer may be
asserted as an affirmative defense. Doe v. Lago Vista Independent School District,
by contrast, ruled 5 to 4 that Title IX of the Education Amendments of 1972 imposes
no liability on local school districts for teacher harassment of students unless a school
official with authority to institute corrective measures has actual knowledge of the
alleged misconduct and is deliberately indifferent to it.
Federal Equal Employment Opportunity Law . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Quid Pro Quo Harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.
Hostile Environment Harassment
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Liability of Employers and Supervisors for Monetary Damages . . . . . . . . . . . . 19
Vicarious Employer Liability
and the Ellerth/Faragher Affmative Defense . . . . . . . . . . . . . . . . . 21
Judicial Developments After Ellerth and Faragher . . . . . . . . . . . . . . . . . . 23
Personal Liability of Harassing Supervisors and Co-workers . . . . . . . . . . 26
Sexual Harassment in the Schools
Violence Against Women Act
United States v. Lanier
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Sexual Harassment and Violence Against
Women: Developments in Federal Law
Gender-based discrimination, harassment, and violence against women in the
home, workplace, and society at large have been the focus of considerable legislative
and judicial attention in recent years. Legal doctrines condemning the extortion of
sexual favors as a condition of employment or job advancement, and other sexually
offensive workplace behaviors resulting in a "hostile environment," continue to evolve
from judicial decisions under Title VII of the 1964 Civil Rights Act and other federal
equal employment opportunity laws. In 1994, Congress broke new legal ground by
creating a civil rights cause of action for victims of "crimes of violence motivated by
gender." The new law also made it a federal offense to travel interstate with the
intent to "injure, harass, or intimidate" a spouse, causing bodily harm to the spouse
by a crime of violence.' On May 16,2000, however, the Supreme Court decided in
U.S. v. orris on' that Congress had overstepped its constitutional bounds when it
passed the VAWA civil remedy provision and invalidated the statute.
Sexual harassment issues have recently assumed new legal and political
importance. The military conviction of a drill sergeant at the Army's Aberdeen
training facility for rape and sexual harassment of female recruits, and recent
allegations by the Army's highest ranking female general that she was harassed by a
male colleague, have focused the public's attention once more upon sexual
harassment in the military. Similarly, proceedings leading to the dismissal of sexual
harassment charges against the President by a former Arkansas state employee
spawned a host of legal and constitutional issues that may reverberate for years to
come. Questions as to the legal responsibility of school districts or other educational
authorities for sexual harassment within the schools are highlighted by judicial
decisions and numerous alleged incidents of sexual abuse or unwanted displays of
affection involving public school students and their teachers.
During its 1997-98 term, the U.S. Supreme Court decided four cases involving
a range of issues from the legality of same-sex harassment to the vicarious liability of
employers and a local school district for monetary damages as the result of
harassment by supervisors and teachers. On March 4,1998, the U.S. Supreme Court
resolved a conflict among the federal circuit courts by ruling, in Oncale v. Sundowner
' 18 U.S.C. 8 2261(a)(1).
120 S.Ct. 1740 (2000).
Ofshore Services Inc. ,3 that sex discrimination consisting of same-sex harassment is
actionable under Title VII. Faragher v. City of Boca Raton4 and Burlington
Industries v. Ellerth5 dramatically altered the standards that had been applied by
federal appeals courts to determine employer liability in sexual harassment cases.
Where harassment by a supervisor results in a "tangible employment action'-such
as demotion or discharge-against an employee, Title VII liability is automatic and
no defense is available to the employer. In cases not involving tangible reprisals or
loss of job benefits, however, the fact that a complaining employee "unreasonably"
failed to avail herself of any anti-harassmentpolicy and procedures established by the
employer may be asserted as an affirmative defense. Gebser v. Lago Vista
~ndependentSchool D i ~ t r i c tby
, ~contrast, ruled 5 to 4 that Title IX of the Education
Amendments of 1972 imposes no liability on local school districts for teacher
harassment of students unless a school official with authority to institute corrective
measures has actual knowledge of the alleged misconduct and is deliberately
indifferent to it. Relying on Gebser, the Court in Davis v. Monroe County Board of
Education7 recognized that school districts may also be liable for student-on-student
harassment, but only where responsible officials "are deliberately indifferent to sexual
harassment, of which they have actual knowledge, that is so severe, pervasive, and
objectively offensive that it can be said to deprive the victims of access to the
educational opportunities or benefits provided by the school."
Federal Equal Employment Opportunity Law
Title VII of the 1964 Civil Rights Act does not mention sexual harassment but
makes it unlawful for employers with 15 or more employees to discriminate against
any applicant or employee "because of. . .sex."8 Federal law on the subject is,
therefore, largely a judicial creation, having evolved over nearly a three decade period
from federal court decisions and guidelines of the Equal Employment Opportunity
Commission (EEOC) interpreting Title VIPs sex discrimination pr~hibition.~
forms of sexual harassment have been recognized by the courts and EEOC
523 U.S. 75 (1998).
524 U.S. 274 (1998).
' 526 U.S. 629 (1999).
42 U.S.C. $ 2000e-2(a)(l).
42 U.S.C. 2000e et seq. Sexual harassment in federally assisted education programs is also
prohibited by Title IX of the 1972 Education Amendments, 20 U.S.C. 5 5 1681 et seq.
(Franklin v. Gwinnet County Public Schools, 503 U S . 60 (1992)). While Title VII andTitle
IX are the primary sources of federal sexual harassment law, relief from such conduct has
also been sought, albeit less frequently, pursuant to $ 1983 of Title 42, the Federal Employees
Liability Act, and the Equal Protection and Due Process Clauses ofthe U S . Constitution.E.g.
Doe v. Taylor Independent School District, 975 F.2d 137 (5" Cir. 1992)(holding that a
student has a firmly established equal protection and due process right to be free from sexual
molestation by a state-employed school teacher).
administrative guidelines. The first, or "quid pro quo" harassment, occurs when
submission to "unwelcome" sexual advances, propositions, or other conduct of a
sexual nature is made an express or implied condition of employment, or where it is
used as the basis of employment decisions affectingjob status or tangible employment
benefits. As its name suggests, this form of harassment involves actual or potential
economic loss--e.g. termination, transfer, or adverse performance ratings, etc.-- as
a consequence of the employee's refbsal to exchange sexual favors demanded by a
supervisor or employer for employment benefits. The second form of actionable
harassment consists of unwelcome sexual conduct that is of such severity as to alter
a condition of employment by creating an "intimidating, hostile or offensive working
environment." The essence of a "hostile environment" claim is a "pattern or
practice" of offensive behavior by the employer, a supervisor, co-workers, or nonemployees so "severe or pervasive" as to interfere with the employee's job
performance or create an abusive work environment.
In 1980, the federal agency responsible for enforcing Title VII issued interpretative guidelines prohibiting both quid pro quo and hostile environment sexual
harassment. The EEOC guidelines focus on sexuality rather than gender-in terms
of job detriments resulting from "[u]nwelcome sexual advances, requests for sexual
favors, and other verbal or physical behavior of a sexual naturen-and require that a
"totality of the circumstances" be considered to determine whether particular conduct
constitutes sexual harassment.'' In addition, judicial developments in hostile
environment law were anticipated by elimination of tangible economic loss as a factor
and by providing that unwelcome sexual conduct violates Title VII whenever it "has
the purpose or effect of unreasonably interfering with an individual's work
performance or creating an intimidating, hostile, or offensive working environment."
According to the EEOC guidelines, an employer is liable for both forms of sexual
harassment when perpetrated by supervisors." The employer, however, is liable for
harassment perpetrated by co-worker or nonemployees only if the employer knew or
should have known of the harassment and failed to "take immediate and appropriate
corrective action."I2 They also recommend that employers take preventive measures
to eliminate sexual harassment3 and state that employers may be liable to those
denied employment opportunities or benefits given to another employee because of
submission to sexual advances.I4
On March 19,1990, the EEOC issued "Policy Guidance on Sexual Harassment"
to elaborate on certain legal principles set forth in its interpretative guidelines from
a decade before.15 First, the later document reasserts the basic distinction between
"quid pro quo" and "hostile environment" and states that an employer "will always be
held responsible for acts of 'quidpro quo' harassment" by a supervisor while hostile
29 C.F.R.!j 1604.ll(a)(l995).
" Id.at 5 1604.11(c).
l 2 Id,a
t !j 1604.11 (d)-(e)(1 995).
l 3 Id. at 5 1604.11 (f).
l4 Id.at !j 1604.11 (g).
IS BNA,FEP Manual 405:6681 et seq.
environmentcases require "careful examination" of whether the harassing supervisor
was acting in an 'agency capacity"'.I6 On the "welcomeness" issue, the policy guide
states that "a contemporaneous complaint or protest" by the victim is an "important"
but "not a necessary element of the claim." Instead, the Commission will look to all
"objective evidence, rather than subjective, uncommunicated feelings" to "determine
whether the victim's conduct is consistent, or inconsistent, with her assertion that the
sexual conduct is un~elcorne."'~In determining whether a work environment is
hostile, several factors are emphasized:
(1) whether the conduct was verbal or physical or both; (2) how frequently it was
repeated; (3) whether the conduct was hostile or patently offensive; (4) whether the
alleged harasser was a co-worker or supervisor; (5) whether others joined in
perpetrating the harassment; and (6) whether the harassment was directed at more
than one individual.
However, because the alleged misconduct must "substantially interfere" with the
victim's job performance, "sexual flirtation or innuendo, even vulgar language that is
trivial or merely annoying, would probably not establish a hostile en~ironment.'"~
addition, "the harasser's conduct should be evaluated from the objective standard of
a 'reasonable person. gl'"
Quid Pro Quo Harassment
The earliest judicial challenges involving tangible benefit or quid pro quo
harassment claims-filed by women who were allegedly fired for resisting sexual
advances by their supervisors-were largely unsuccessful. The discriminatory
conduct in such cases was deemed to arise from "personal proclivity" of the
supervisor rather than "company directed policy which deprived women of
employment opportunities." Until the mid-1 9701s, federal district courts were
reluctant either to find a Title VII cause of action or to impose liability on employers
who were neither in complicity with, nor had actual knowledge of, quid pro quo
harassment by their supervisory employees. An historic turning point came when the
federal district court in Williams v. Saxbe20 held for the first time that sexual
harassment was discriminatory treatment within the meaning of Title VII because "it
created an artificial barrier to employment which was placed before one gender and
not the other, despite the fact that both genders were similarly ~ituated."~'Echoing
earlier opinions that an employer is not liable for "interpersonal disputes between
employees," the court nonetheless rehsed to &miss the complaint since "if [the
Id. at 405:6695.
Id. at 405:6686.
F. Supp. 654 (D.D.C. 1976).
Id. at 657-58.
alleged harassment] was a policy or practice of plaintiffs supervisor, then it was the
agency's policy or practice, which is prohibited by Title ~ 1 1 . " ~ ~
Appellate tribunals in several federal circuits soon began to affirm that quidpro
quo harassment violates Title VII where "gender is a substantial factor in the
discrimination," reversing contrary lower court holdings. For example, Judge
Spotswood Robinson, writing for the D.C. Circuit in Barnes v. C ~ s t l disagreed
with "the notion that employment conditions summoning sexual relations are
somehow exempted from the coverage ofTitle VII" as implied by the decision below.
Finding that it was "enough that gender is a factor contributing to the discrimination
in a substantial way," Judge Robinson ruled that differential treatment based upon an
employee's rejection of her supervisor's sexual advances violated the statute.
Similarly, in Tomkins v. Public Service Electric & Gas Co., the Third Circuit reversed
the trial court's denial of Title VII protection to all "sexual harassment and sexually
motivated assault," finding that where an employee's "status as a female was a
motivating factor in the supervisor's conditioning her continued employment on
compliance with his sexual demands," actionable quid pro quo harassment had
occurred. "[Tlo establish aprima facie case of quidpro quo harassment, a plaintiff
mustpresent evidence that she was subject to unwelcome sexual conduct, and that her
reaction to that conduct was then used as the basis for decisions affecting the
And while the
compensation, terms, conditions, or privileges of her empl~yrnent."~~
loss of a "tangible employment benefit'' has most often meant dismissal or demotion,
quidpro quo claims may also arise from denial of career advantages-job title, duties
less immediate economic impact upon the employee. The Seventh
Circuit, for example, has ruled that a tenured professor who was allegedly stripped
of her job title and removed from academic committees because she rebuffed the
sexual advances of the university provost may have a claim for quidpro quo sexual
harassment under Title VII.2S
The dismissal by Judge Susan Weber Wright of Paula Jones' sexual harassment
lawsuit against President Clinton squarely addressed the workplace consequences that
must flow from the refusal to submit to an unwelcome sexual advance for the court
Plaintiff Jones claimed that her career advancement
to find actionable hara~sment.~~
had repeatedly been thwarted by her state employer as retribution for rebuffing the
former Arkansas Governor. As evidence of "tangible job detriments," Jones alleged
that she had been discouraged by supervisors from seeking job promotions or pay
increases; that following return from maternity leave, she was transferred to a new
position with fewer responsibilities; that she was effectively denied access to
grievance procedures available to other sexual harassment victims; and that by
physically isolating her directly outside her supervisor's office with little work to do,
Id. at 660-61.
561 F.2d 983 @.C.Cir. 1977).
Karibian v. Columbia University, 14 F.3d 773,777 (2d Cir.), cert. denied, 114 S.Ct. 2693
Bryson v. Chicago State University, 96 F.3d 912 (7" Cir. 1996).
26 Jones v. Clinton, 16 F. Supp. 2d 1054 (E.D.Ark.
she was "subjected to hostile treatment having tangible effects." Judge Wright was
unconvinced by the record, however, that any threat perceived by Jones during her
alleged hotel meeting with the former Governor was so "clear and unambiguous" as
to be a quid pro quo conditioning of "concrete job benefits or detriments on
compliance with sexual demands." "Refusal" cases like Jones, calling for proof
"tangible job detriment" by plaintiffs who resist unwelcome sexual demands, "27 were
distinguished from so-called "submission'' cases, where "in the nature of things,
economic harm will not be available to support the claim of the employee who
submits to the supervisor's demand^."^'
It was widely anticipated that some further guidance on the essential character
of quidpro quo harassment, particularly in relation to Jones' claims against President
Clinton, would be forthcoming when the Supreme Court decided Burlington
Industries, Inc, v. Ellerth.29 That case involved a former merchandising assistant at
Burlington Industries who alleged that she was the subject of repeated boorish and
offensive comments and gestures by a division vice-president who implied that her
response to his advances would affect her career. Ellerth detailed three incidents in
which her supervisor's comments could be construed as threats to deny her tangible
job benefits. A short time later, she quit her job without informing anyone in authority
about the harassment, even though she was aware of Burlington's anti-harassment
The trial court granted the company's motion to dismiss on the grounds that no
adverse consequences flowed fiom the plaintiff's refusal to submit to the alleged
advances. The action was reinstated by a per curiam decision of the entire Seventh
Circuit holding the employer strictly liable for quid pro quo harassment "even if the
supervisor's threat does not result in a company act"30 or actual economic loss.
on the other hand,
Appellate court rulings from the Eighth3' and E l e ~ e n t hCircuits,
had during the same period reaffirmed the necessity of proving actual loss of job
benefits or a "tangible job detriment" as an element of a quidpro quo claim. Squarely
presented by Ellerth, therefore, was the question of whether sexual advances by a
supervisor accompanied by the threatened but not actualized loss of employment or
job benefits may render an employer liable for quidpro quo harassment.
E.g., Cram v, L m o n & Sessions Co., 49 F.3d 466 (8IhCir. 1995); Sanders v. Casa View
Baptist Church, 134F.3d 33 1,339 (ShCir. 1998)(notingthat to withstand summaryjudgment
on quid pro quo claims, plaintiffs were required to produce evidence showing that the
harassment complained of affected tangible aspects of their compensation, terms, conditions,
or privileges of employment); Gary v. Long, 59 F.3d 1391, 1396 (D.C. Cir. 1995)("[A]
supervisor's mere threat or promise of job-related harm or benefits in exchange for sexual
favors does not constitute quid pro quo harassment. . . .").
Karibian v. Columbia Univ., supra n. 23. See also Jansen v. Packaging Corp of American,
123 F.3d 490 (Th Cir. 1997).
123 F.3d 490,494 (7thCir. 1997)@ercuriarn).
3' Davis v. City of Sioux City, 115 F.3d 1365 (8thCir. 1997).
32 Farley v. American Cast Iron Pipe Co,, 115 F.3d 1548 (1lthCir. 1997).
In fashioning an employer liability rule in Ellerth, and the Faragher case decided
the same day, the Court considered the judicial distinction between quidpro quo and
environmental harassment to be less important than whether the claim involved a threat
that had been "carried out" in fact. Claims based on unhlfilled threats of retaliation
were equated by the Court to hostile environment harassment, requiring plaintiff to
prove "severe and pervasive" conduct. Under common law agency principles, as
applied by the majority, an employer is generally immune from liability for the tortious
conduct of its agent (the harassing supervisor in Ellerth), which is deemed to be
"outside the scope of employment," unless the wrongdoer is "aided" in the harassment
by "the existence of the agency relation." The "aided in the agency relation standard"
differentiates supervisory harassment for which an employer may be automatically
liable from similar acts committed by mere co-workers. And it is most clearly satisfied
in those cases where the harassment culminates in a "tangible employment action."
Such actions, according to Justice Kennedy, include instances where the subordinate
employee is subjected to "a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities, or
a decision causing a significant change in benefits" for fiiling to permit sexual liberties.
Since Ellerth had not demonstrated that she was the victim of retaliation by her
supervisor - in fact, she had been promoted during the period in question - there was
no tangible detriment for which the employer could be held strictly liable.
Ellerth was remanded, however, for application of an alternative standard of
vicarious employer liability formulated by the Court jointly in Ellerth and Farragher
for supervisory harassment cases not involving a "tangible employment action." Under
that rule, after the plaintiffproves that the supervisory misconduct is both "severe and
pervasive," the employer may assert as an "affirmative defense" that its actions to
prevent and remedy workplace harassment were "reasonable," while the plaintiff
"unreasonably" failed to take advantage of any anti-harassment policies and
procedures of the employer. Ellerth's failure to avail herself of the employer's
grievance procedure likely defeats any Title VII recovery against Burlington under the
second prong of this defense. The judicial task for lower courts after Ellerth is to
construe this duty of reasonable care governing the employer's affirmative defense to
liability. Other than rewarding employers for prophylactic measures aimed at
workplace harassment and compelling victim participation in those efforts, Ellerth
provides little specific guidance. Note also that Justice Kennedy's opinion for the
majority in Ellerth included a passing elliptical reference to Jones v. Clinton when it
"express[ed] no opinion as to whether a single unfulfilled threat is sufficient to
constitute discrimination in the terms or conditions of employment." This dictum
largely begs the district court's conclusion that harassing circumstances alleged by
Jones did not create a hostile environment, and since no "tangible employment action"
was proven, any finding of actionable harassment under federal law was unwarranted.
Hostile Environment Harassment
The earlier judicial focus on economic detriment or quid pro quo
harassment-making submission to sexual demands a condition to job benefitslargely gave way to Title VII claims for harassment that creates an "intimidating,
hostile, or offensive environment." The first federal appellate court to jettison the
tangible economic loss requirement and recognize a hostile environment claim of
sexual harassment was the D.C. Circuit in Bundy v. J a c k ~ o n .The
~ ~ plaintiff there
charged that several supervisors made continual sexual advances and propositions,
questioned her about her sexual proclivities, ignored her complaints, criticized her
work performance, and attempted to block her bid for promotion. The appeals court
ruled that actionable sex discrimination is not limited to gender-based conditions
resulting in a tangible job consequence, but occurs whenever sex is a motivating factor
in treating an employee in an adverse manner. Despite the plaintiffs failure to prove
quidpro quo harassment-she was not fired, demoted, or denied a promotion-the
court was unwilling to adopt a rule that would permit an employer to lawfully harass
an employee "by carefully stopping short of firing the employee or taking any other
tangible actions against her in response to her re~istance."~~
important to the judicial development of sexually hostile environment law was Henson
v,Dundee where the Eleventh Circuit rejected a claim of quidpro quo harassment but
found that the employee had a right to a trial on the merits to determine whether the
misconduct alleged made her job environment hostile.35
Meritor Savings Bankv. V i n s ~ ratified
n ~ ~ the consensus then emerging among the
federal circuits by recognizing a Title VII cause of action for sexual harassment.
Writing for the Supreme Court in 1986, then-Justice Rehnquist affirmed that a "hostile
environment," predicated on "purely psychological aspects of the workplace
environment," could give rise to legal liability and that "tangible loss" of "an economic
character" was not an essential element. This holding was qualified by the Court with
important reservations drawn from earlier administrative and judicial precedent. First,
"not all workplace conduct that can be described as 'harassment' affects a term,
condition, or privilege of employment within the meaning of Title VII." For example,
the "mere utterance" of an "epithet" engendering "offensive feelings in an employee"
would not ordinarily be per se actionable, the opinion suggests. Rather, the
misconduct "must be sufficiently severe or pervasive to alter the conditions of [the
victim's] employment and create an abusive working en~ironment."~~
641 F.2d 934 (1981).
Id. at 945.
35 682 F.2d 897 (1 la Cir. 1982). In an oft-quoted passage from its opinion, the court stated:
Sexual harassment whch creates a hostile or offensive environment for members
of one sex is every bit the arbitrary barrier to sexual equality at the workplace that
racial harassment is to racial equality. Surely,a requirement that a man or woman
run a gauntlet of sexual abuse in return for the privilege of being allowed to work
and make a living can be as demeaning and disconcertingas the harshest of racial
epithets. A pattern of sexual harassment inflicted upon an employee because of
her sex is a pattern of behavior that inflicts disparate treatment upon a member of
one sex with respect to terms, conditions, or privileges of employment. There is
no requirement that an employee subjected to such disparate treatment prove in
addition that she suffered tangible job detriment. Id, at 902.
36 477 U.S. 57 (1986).
37 Id. at 62 (quoting Henson v. Dundee), supra n. 21 at 904. In Vinson the complainant
alleged that her supervisordemanded sexual relations over a three-year period, fondled her in
Second, while "voluntariness" in the sense of consent is not a defense to a sexual
[tlhe gravamen of any sexual harassment claim is that the alleged sexual advances
were 'unwelcome.' . . .The correct inquiry is whether respondent by her conduct
indicated that the alleged sexual advances were unwelcome, not whether her actual
participation in sexual intercourse was voluntary.38
Accordingly, "it does not follow that a complainant's sexually provocative speech or
dress is irrelevant as a matter of law in determining whether he or she found particular
sexual advances unwelcome. To the contrary, such evidence is obviously rele~ant."~'
Finally, turning to the issue of employer liability, the Viason majority held that the
court below had "erred in concluding that employers are always automatically liable
for sexual harassment by their supervisor^."^^ The usual rule in Title VII cases is strict
liability, and four Justices, concurring in the judgment, argued that the same rule
should apply in the sexual harassment context as well. The majority disagreed,
irnpliedly suggesting that in hostile environment cases no employer, at least none with
a formal policy against harassment, should be made liable in the absence of actual or
The Supreme Court's failure to clearly define what constitutes a hostile
environment in Meritor Savings led to frequent conflict in the lower courts. For
example, three federal Circuit Courts of Appeals-the Sixth, the Seventh, and the
that in a sexual harassment case, a plaintiff must not only prove
that the conduct complained of would have offended a reasonable victim and that he
or she was actually offended, but also that the plaintiff suffered serious psychological
front of other employees, followed her into the women's restroom and exposed himself to her,
and forcibly raped her several times. She claimed she submitted for fear of jeopardizing her
employment. During the period she received several promotions which, it was undisputed,
were based on merit alone so that no exchange ofjob advancement for sexual favors (quid pro
quo harassment) was alleged or found.
Id. at 68 (citing 29 C.F.R. 5 1604.11(a)(1985)).
Id. at 69.
Id. at 72.
On the issue of employer liability, Meritor states:
[While] declin[ing] the parties' invitation to issue a definitive rule on employer
liability. . .we do agree with the EEOC that Congress wanted courts to look to
agency principles for guidance in this area. While such common-law principles
may not be transferable in all their particulars to Title VII, Congress' decision to
define 'employer' to include any 'agent' of an employer, 42 U. S.C. 5 2000e(b),
surely evinces an intent to place some limits on the acts of employees for which
employers under Title VII are to be held responsible. Id. at 72-73.
injury as a result of the conduct.42 On the other hand, three other Circuits, the Third,
the Eighth, and the Ninth, held that the Title VII plaintiff need demonstrate only that
he or she was actually offended by conduct that would be deemed offensive by a
Harris v. Forklift Systems, I ~ c . revisited
, ~ ~ and offered some clarification of
Meritor Savings. The Supreme Court granted certiorari in Harris to resolve the
conflict among the circuits over whether harassing conduct must produce severe
psychological harm to create an actionable hostile environment under Title VII. A
company president had subjected a female manager to sexual innuendo, unwanted
physical touching, and insults because of her gender. After two years, she left the job.
Despite its determination that demeaning sexual comments by the employer had
"offended the plaintiff, and would offend the reasonable woman," the trial court ruled
against the plaintiff since the conduct alleged was not "so severe as to be expected to
seriously affect plaintiffs psychological well-being" or create an "intimidating or
abusive" environment. The Sixth Circuit upheld the trial court ruling in a threeparagraph unpublished opinion.
The Supreme Court reversed, deciding in 1993 that hostile environment sexual
harassment need not "seriously affect psychological well-being" of the victim before
Title VII is violated. Meritor Savings, wrote Justice O'Connor, had adopted a "middle
path" between condemning conduct that was "merely offensive" and requiring proof
of "tangible psychological injury." Thus, a hostile environment is not created by the
"'mere utterance of an . . . epithet which engenders offensive feelings in an employee."'
On the other hand, a victim of sexual harassment need not experience a "nervous
breakdown" for the law to come into play. "So long as the environment would
reasonably be perceived, and is perceived, as hostile or abusive, there is no need for
it also to be psychologically injurious."
Harris also addressed the standard of reasonableness to be applied in judging
sexual harassment claims, an issue dividing the lower federal courts then and now.
Justice O'Connor opted for a two-part analysis, both components of which must be
met for a violation to be found. First, the conduct must create an objectively hostile
work environment-"an environment that a reasonable person would find hostile and
abusive." Second, the victimmust subjectivelyperceive the environment to be abusive.
The "totality of circumstances" surrounding the alleged harassment are to guide
judicial inquiry, including "the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance."
Significantly,however, Harris did not explicitly resolve a fundamental issue raised by
Rabidue v. Osceola Refining Co., 805 F.2d 6 11 (6" Cir. 1986); Scott v. Sears Roebuck,
798 F.2d 210 (7thCir. 1986); and Brooms v. Regal Tube, 830 F.2d 1554 (1 lthCir. 1987).
Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir 1990); Burns v. McGregor
Electronic Industries, Inc., 955 F.2d 559 (8'h Cir. 1992); and Ellisonv. Brady, 924 F.2d 872
( 9 Cir.
510 U.S.17 (1993).
several lower courts regarding the appropriate "gender perspective" to consider in
assessing sexual harassment claim^.^'
An increasingly broad range of hostile environment harms-frequently
concerned with lewd comments, inquiries, jokes or displays of pornographic materials
in the workplace as with overt sexual aggression-have been brought before the
the first reported
federal courts. Robinson v. Jackson Shipyards: I ~ cwas
decisions to impose liability for sexual harassment based on the pervasive presence of
sexually oriented materials-magazine foldouts or other pictorial depictions-and
"sexually demeaning remarks and jokes" by male co-workers without allegations of
physical assaults or sexual propositions directed at the plaintiff. Most courts, however,
have limited recovery to cases involving repeated sexual demands or other offensive
c ~ n d u c t . ~Except
for cases involving touching or extreme verbal behavior, courts are
often reluctant to find that sexual derision--or claims against pornography in the
workplace-when unaccompanied by sexual demands, is suficient to create a hostile
e n ~ i r o n m e n t .This
~ ~ tendency may be reinforced by the Court's admonition in Oncale
Compare, e.g. Rabidue v. OsceolaRefining Co., 805 F.2d 61 1,622 (6" Cir. 1986)(holding
that barrage of "nudie" pictures and litany of degrading comments were "annoying," but
would not be sufficiently offensive to a reasonable person so as to interfere with the person's
work performance), c a t . denied, 481 U.S. 1041 (1987) with Robinson v. Jacksonville
Shipyards, Inc., 760 F. Supp. 1486, 1524 (M.D. Fla. 199l)(applying reasonable woman
standard to determine that pervasive pornographic pictures, sexual comments, verbal
harassment, abusive graffiti, and unwelcome touching of some of plaintiffs female coworkers created a hostile working environment)and Spenser v. General Electric Co., 697 F.
Supp. 204,218 (E.D. Va. 1988)(finding that sexual comments and suggestive behavior of
plaintiffs superior, such as sitting on female workers' laps and talking about private parts,
would have seriously affected the psychological well-being of reasonable female employee),
aff'd, 894 F.2d 651 (4" Cir. 1990). See also Ellison v. Brady, 924 F.2d 872, 879 (9" Cir.
1991)(adopting reasonable woman standard).
760 F. Supp. 1486 (M.D.Fla. 1991).
E.g. Highlander v. K.F.C. Nat'l Management Co., 805 F. 2d 644 (6" Cir. 1986)fiolding
that one instance of fondling and one verbal proposition were not sufficient to establish
"hostile environment");E,g. Waltman v. Int'l Paper Co., 875 F.2d 468, 475 (Sth Cir.
1989)("focus is whether [plaintiff] was subjected to recurring acts of discrimination, not
whether a given individual harassed [plaintiff]recurrently."); King v. Board of Regents, 898
F.2d 533, 537 (7" Cir. 1990)("although a single act can be enough, . .generally repeated
incidents create a stronger claim of hostile environment, with the strength of the claim
depending on the number of incidents and the intensity of each incident"). But cf. Vance v.
SouthernTel. & Tel. Co., 863 F.2d 1503,1510 (11th Cir. 1989)C'the determination ofwhether
the defendant's conduct is sufficiently'severe or pervasive' to constitute racial harassment
does not turn solely on the number of incidents alleged by plaintiff.").
48 For example, inHallv. Gus Construction Co., 842 F.2d 1010,1017 (8" Cir. 1988),having
found that defendants' conduct had gone "far beyond that which even the least sensitive of
persons is expected to tolerate," the Eighth Circuit nonetheless felt compelled to add that
"Title VII does not mandate an employment environment worthy of a Victorian salon. Nor
do we expect that our holding today wdl displace all ribaldry on the roadway." See also
Cowan v. Prudential Ins. Co. of America, 141 F.3d 751, 758 (7" Cir. 1998)(no hostile
environment where offensive comments were "fairly sporadic . . . [and] unrelated incidents
that Congress never intended Title VII to become a general "code of civility." But
conduct need not be overtly sexual; other hostile conduct directed against the victim
because of the victim's sex is also pr~hibited.~'And, in line with Vinson,evidence of
a sexual harassment claimant's own provocative behavior or prior workplace conduct
is generally relevant to a judicial determination of whether the defendant's conduct
which occurred over two years of [plaintiffs] employment, were not physically threatening,
most of the incidents were not severe, and only two of the incidents were directed at
plaintiff'); Jones v. Flagship Int'l, 793 F.2d 714 (5" Cir. 1986)(holding that two requests for
sexual contactplus one incident of bare-breastedmermaids as table decorations for a company
party were insufficiently pervasive to create hostile environment), cert. denied, 479 U.S. 1065
See Williams v. General Motors Corp., F.3d (6" Cir, 1999); Andrews v. City of
Philadelphia, 898 F.2d 1469,1485 (3d Cir. 1990)("The Supreme Court [invinson] inno way
limited this concept to intimidation or ridicule of an explicitly sexual nature ."); Bell v. Crackin
Good Bakers, Inc., 777 F.2d 1497, 1503 (1 1" Cir. 1985)(holdingthat valid claim could be
based on "threatening, bellicose, demeaning, hostile, or offensive conduct by a supervisor in
the workplace because of the sex of the victim); McKinney v. Dole, 765 F.2d 1129, 1140
@.C.Cir. 1985)(district court erred in assuming that incident of physical force could not
constitute sexual harassment unless "explicitly sexual").
See, e.g., Jones v. Wesco Investments Inc., 846 F.2d 115411.5 (8" Cir. 1988j("A court must
consider any provocative speech or dress of the plaintiff in a sexual harassment case.");
Swentek v. USAIR, Inc., 830 F.2d 552, 556 (4" Cir. 1987)(affirming trial judge's
determination to permit testimony that the plaintiff was "a foul-mouthed individual who o k n
talked about sex," that the plaintiff had placed a "dildo in her supervisor's mailbox" and once
grabbed the genitals of a male co-worker and sexually propositioned him).
Claims involving isolated or intermittent incidents have frequently been dismissed
as insufficiently pervasive." In Jones v. Clintons2,for example, Judge Wright ruled
that considering the "totality of circumstances," an alleged hotel incident and other
encounters between Paula Jones and former Governor Clinton were not "the h n d of
sustained and nontrivial conduct necessary for a claim of hostile work environment."
In particular, the court noted that plaintiff Jones "never missed a day of work" because
of the incident nor did she complain to her supervisors; never did she seek medical or
psychological treatment as a consequence of alleged harassment; and that her
allegations generally failed to demonstrate any adverse workplace effects. The Seventh
Circuit, in another case, concluded that while an Illinois state employee "subjectively
perceived her work environment to be hostile and abusive" the paucity of sexually
oriented comments complained of-three suggestive comments by a co-worker over
a three-month period-"were not sufficiently severe that a reasonable person would
feel subjected to a hostile working e n ~ i r o n m e n t . " Of
~ ~ course, a single incident may
be actionable if it is linked to a granting or denial of an employment benefit (quidpro
Scusa v. Nestle USA Company, 181 F.3d 958 (8" Cir. 1999)(pattern of co-worker
harassment not actionable because it was not so severe or pervasive as to prevent plaintiff
fkom performing all her duties on a full-time basis); Lam v. Curators of the Univ, of Mo., 122
F.3d 654,656-57 (8" Cir. 1997)(notingthat single exposure to offensive videotape was not
severe or pervasive enough to create hostile environment); Sprague v. Thorn Americas, Inc,
129 F.3d 1355, 1366 (7&Cir. 1997)(five sexually-oriented incidents spread out over the
course of 16months not sufficiently severe or pervasive to create hostile environment); Saxton
v. American Tel. & Tel. Co., 10 F.3d 526,534 (7" Cir. 1993)("relatively limited" instances
of unwanted sexual advances, which included the supervisor placing his hand on plaintiffs
leg above the knee several times, rubbing his hand along her upper thigh; kissing her several
seconds, and "lurching at her from behind some bushes," did not create an objectively hostile
work environment); Chamberlinv. 101 Realty, 915 F.2d 777 (1st Cir. 199O)(five mild sexual
advances by a supervisor, without more, were insufficient); Dnnkwater v. Union Carbide
Corp., 904 F.2d 853 (3d Cir. 1990)(a claim must demonstrate a "continuous period of
harassment and two comments do not create an atmosphere."); Ebert v. Lamar Truck Plaza,
878 F.2d 338 (lothCir. 1989)(use of foul language and infrequent touchlng of employees at
24-hour restaurant was not pervasive or severe and management promptly took corrective
action whenever complaints were made).
'*Supra n. 25.
53 McKensie v. Illinois Department of Transportation, 92 F.3d 473 (Th Cir. 1996). See also
Butler v. Ysleta Independent School District, 161 F. 3d 263 (ShCir. 1998)(sexuallyoffensive
messages anonymously sent by elementary school principal to two female teachers not
actionable since they were infrequent and non-threatening and were received at home while
it is the "workplace itself [that] is central to the wrong of sexual harassment." Penry v.
Federal Home Loan Bank of Topeka, 155 F.3d 1257 (loth Cir. 1998)(gender-based
inappropriate behavior of supervisor over a three-year period- includmg needless touching,
grabbing, and offensive comments-evinced "poor taste and lack of professionalism," but
incidents "were too few and far between to be considered harassment). But cf., Abeita v.
TransAmerica Mailings, 159 F.3d 246 (6" Cir. 1998)(though not directed at plaintiff,
supervisor's sexually provocative statements to her about other women for an ongoing and
continual basis for seven years, were sufficiently severe and pervasive to send case to the
quo h a r a ~ s m e n t ) ,or~ if the incident involves physical assault5 or touching of the
employee in an offensive manner under circumstances that preclude her escape.s6 The
EEOC policy statement also states that the agency "will presume that the unwelcome,
intentional touching of a charging party's intimate body areas is suMiciently offensive
to alter the conditions of her working environment and constitute a violation of Title
Title VII was interpreted early on by the courts and the EEOC to protect both
men and women against workplace sexual harassment by the opposite sex. In Meritor,
the Court found that Congress intended "to strike at the entire spectrum of disparate
treatment of men and women" in employment and read Title VII to prohibit
discriminatory harassment by a supervisor "because of the subordinate's sex." Until
the Supreme Court decision in Oncale v. Sundowner Offshore Services, Inc., however,
federal courts were sharply divided over whether the Act applied when the harasser
and the victim are of the same sex. Although Title VII does not prohibit direct
discrimination by an employer based on an employee's sexual orientations8-whether
homosexual, bisexual, or heterosexual-the EEOC5' and the District of C ~ l u m b i a , ~ ~
Neville v. Taft Broadcasting Co., 857 F. Supp. 1461 (W.D.N.Y. 1987).
" Crisoninov.New York City Housing Auth., 985 F. Supp. 385 (S.D.N.Y. 1997)(supervisor
called plaintiff a "dumb bitch" and "shoved her so hard that she fell backward and hit the
floor, sustaining injuries from which she has yet to fully recover").
" Davis v. U.S. Postal Service, 142 F.3d 1334 (10" Cir. 1998)("[a] rational jury could frnd
that a work environment in which a plaintiff is subjected to regular unwelcome hugging and
kissing combined with other specific incidents . . . [including] an assault, is objectively
FEP Manual at 405 :6681.
Ulanev. Eastern Airlines, Inc., 742 F.2d 1081 (7" Cir. 1984), cert. denied, 471 U S . 1017
'' The EEOC Compliance Manual states that the respective sexes of the harasser and the
victim are irrelevant in determining whether Title VII has been violated:
The victim does not have to be of the opposite sex from the harasser. Since sexual
harassment is a form of sex discrimination, the crucial inquiry is whether the
harasser treats a member or members of one sex differently from members of the
other sex. The victim and the harasser may be of the same sex where, for instance,
the sexual harassment is based on the victim's sex (not on the victim's sexual
preference) and the harasser does not treat the employees of the sex the same way.
EEOC Compliance Manual, $ 6 15.Z(b)(3). While EEOC interpretations of Title VII are not
binding on the courts, they are frequently accordedjudicial deference. See Meritor, 477 U S .
Barnes v. Costle, 561 F.2d 983,990 n. 55 @.C.Cir. 1977)(acknowledgingthe possibility
of actionable Title VII claim where "a subordinate of either gender" is harassed "by a
homosexual superior of the same gender.").
S i ~ t h , Se~enth,~'
~ i g h t hNinth
, ~ ~ C i r ~ u i tand
, ~ ~Eleventh Circuitd5 all indicated that
same-sex harassment was actionable in some circumstances. An apparent majority of
federal district courts to consider the issue also allowed such claims where the alleged
harassment is "because of' the victim's sex;66the rationale being that Title VII bars
disparate treatment based on the sex or gender of the employee, without regard to
whether the harasser is male or female. Nonetheless, the Fifth Circuit concluded with
minimal analysis that same sex harassment was never a~tionable,~~
while other courts
had limited Title VII liability to same sex cases based on homosexual conduct since
only then was the harassment deemed to be "because of sex."68
61 Yeary v. Goodwill Industries-Knoxville,
Inc., 107 F.3d 443 (6" Cir. 1997)("It is not
necessary for this court to decide today whether same-sex harassment can be actionable only
when the harasser is homosexual; all that is necessary for us to observe is that when a male
sexually propositions another male because of sexual attraction, there can be little question
that the behavior is a form of harassment that occurs because the propositioned male is
male--that is 'because of'. . .sex.")
62 Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7" Cir. 1995)(In a heterosexual
harassment action, the court noted parenthetically that "sexual harassment of women by men
is the most common kind, but we do not mean to exclude the possibility that sexual
harassment of men by women, or men by other men, or women by other women would not be
actionable in appropriate cases."). See also J. Doe & H. Doe v. City of Belleville, 119 F.3d
563 (7thCir. 1997).
Quick V.Donaldson Co., 90 F.3d 1372 (8'hCir. 1996)(evidence that male employees were
the sole targets of other heterosexuals who practiced "bagging" co-worker testicles could lead
to finding that such treatment was based on sex).
Showboat Operating Co., 25 F.3d 1459, 1464 (9'h Cir. 1994)(commentingthat
"we do not rule out the possibility that both men and women. . .have viable claims against [a
male supervisor] for sexual harassment"), cert. denied 115 S. Ct. 733 (1995).
64 Steiner v.
65 Fredette v. BVP Management Associates, 112 F.3d 1503 ( l l & Cir. 1997)rwhen
homosexual male supervisor solicits sexual favors from a male subordinate and conditions
work benefits or detriment on receiving such favors, the male subordinate can state a viable
Title VII claim for gender discrimination"),
66 See Gerd v. United Parcel
Service, Inc., 934 F. Supp. 357 (D.Colo. 1996) and cases cited
67 Garcia v. Elf Atochem North America, 28 F .3d 449 (5' Cir. 1994) denied that "harassment
by a male supervisor against a male subordinate [states] a claim under Title VII even though
the harassment has sexual overtones" based on the earlier Fifth Circuit ruling in Goluszek v.
Smith. The Goluszek court refused "a wooden application" of Title VII to salvage same-sex
claims in favor of an interpretation that focused on "imbalance" and "abuse" of power in the
workplace directedat "discrete and vulnerable groups." Title VII claims were limited, said the
court, to the "exploitation of a powerful position to impose sexual demands or pressures on
an unwilling but less powerful person." Since a male in a3'maledominated" work environment
was not "inferiorw- or a victim of a "gender-biased atmosphere; an atmosphere of oppression
by a 'dominant gender"'-same sex harassment was not actionable. See also Vandevanter
v.WabashNat'1 Corp., 867 F. Supp. 790 (N.D.Ind. 1994).
McWilliams v. Board of Supervisors, 72 F.3d 1191 (4" Cir. 1996). See also Wrightson v.
Pizza Hut of America, Inc. 99 F.3d 138 (4'h Cir. 1996)("a claim may lie under Title VII for
On March 4,1998, the U.S. Supreme Court entered the fray and while providing
a modicum of specific guidance, agreed with the majority view of the federal courts
that "nothing in Title VII necessarily bars a claim of discrimination 'because of . . .
sex' merely because the plaintiff and defendant (or the person charged with acting on
behalf of the defendant) are of the same sex." OncaIe v. Sundowner Offshore Services,
Inc. 69 involved quidpro quo and hostile environment claims of a male offshore oil rig
worker who alleged that he was sexually assaulted and abused by his supervisor and
two male co-workers for three months in 1991, forcing him to quit his job. Relying
on the Fifth Circuit's earlier Garcia ruling, a federal judge in Louisiana dismissed the
action. On appeal, the Fifth Circuit observed that Title VII's prohibition against sex
discrimination is "gender-neutral" and seemed persuaded by Meritor and Harris that
"so long as the plaintiff proves that harassment is because of the victim's sex, the sex
of the harasser and victim is irrelevant." Nonetheless, the appeals court viewed itself
bound by the panel decision in Garcia which could not be overruled absent a contrary
en banc ruling by the Fifth Circuit or superceding decision by the Supreme Court.
In a remarkably brief opinion, the Supreme Court revived Oncale's federal
lawsuit, voting unanimously to defeat "a categorical rule excluding same-sex
harassment claims from the coverage ofTitle VII." Long on implication, but short on
detail, Justice Scalia's opinion for the court is notable for its emphasis on general
sexual harassmentprinciples-transcending the limits of the same-sex issue before the
Court-and possibly paving the way for stricter scrutiny of sexual harassment claims
in general. First, the opinion observes that federal discrimination laws do not prohibit
"all verbal or physical harassment in the workplace," only conduct that is
discriminatory and based on sex. Moreover, harassing or offensive conduct "is not
automatically discrimination because of sex, merely because the words used have a
sexual content or connotation." Instead, Justice Scalia emphasized, those alleging
harassment must prove that the conduct was not just offensive, but "actually
constituted" discrimination. Secondly, reiterating Meritor and Harris, only conduct
SO "severe or pervasive" and objectively offensive as to alter the conditions of the
victim's employment is actionable so that "courts and juries do not mistake ordinary
socializing in the workplace-such as male-on-male horseplay or intersexual
flirtation-for discriminatory 'conditions of employment."' Another modulating aspect
of the Oncale ruling is the Court's obvious concern for "social contextyyand
workplace realities when appraising all sexual harassment claims-same-sex or
The real social impact of workplace behavior often depends on a constellation
of surrounding circumstances, expectations, and relationships which are not fully
captured by a simple recitation of the words used or the physical acts performed.
Common sense and an appropriate sensitivity to social context, will enable courts
and juries to distinguish between simple teasing or roughhousing among members
of the same sex, and conduct which a reasonable person in the plaintiffs position
would find severely hostile or abusive.
same-sex hostile work environment sexual harassment where, as here, the individual charged
with the discrimination is homosexual").
118 S.Ct 998 (1998).
The net effect of Oncale for same sex harassment and hostile environment cases
generally is difficult to predict. The Court clearly reinjected the element of
discrimination - 'because of sex" - back into harassment law, perhaps tempering a
tendency on the part of some lower courts to equate offensive behavior with a hostile
environment without more. Indeed, Justice Scalia goes so far as to state that ''Title VII
does not prohibit all verbal or physical harassment" and "requires neither asexuality or
androgyny in the workplace." Because little guidance is offered, however, for
determining when untoward conduct crosses the line to sex-based discrimination,
formidable obstacles may remain for Joseph Oncale, the victor before the Supreme
Court, and others like him. Justice Scalia's opinion suggests two possible approaches
to demonstrating a nexus between sexually offensive conduct and gender
A trier of fact might reasonably find such discrimination, for example, if a female
victim is harassed in such sex-specific and derogatory terms by another woman as
to make it clear that the harasser is motivated by general hostility to the presence
of women in the workplace. A same-sex harassment plaintiff may also, of course,
offer direct comparative evidence about how the alleged harasser treated members
of both sexes in a mixed-sex workplace.
But it is difficult to discern how either approach would aid male sarne-sex plaintiffs
like Oncale in proving discrimination "because of sex" when they are victims of
harassment by other males on an oil rig or in other male-dominated workplaces.
The Oncale ruling may also mark a general tempering of earlier decisions driving
current trends in sexual harassment litigation. The numerous examples of "innocuous
differences" in the way men and women interact cited by the Court might serve as the
basis for hture judicial acceptance of a wider latitude of behavior in the workplace
than might otherwise have been considered permissible. The lengths to which Justice
Scalia seems to go in articulating the bounds of permissible heterosexual behavior in
a same-sex harassment case reinforces this conclusion. Thus, the express approval of
"intersexual flirtation" and "teasing or roughhousing" implies that a certain level of
fraternization in the workplace is permissible and the consequent range of actionable
conduct correspondingly reduced. In this regard, the decision's emphasis upon "social
context" may complicate the already difficult judicial task of identifying a sexually
hostile work environment. Does this mean, for example, that conduct permitted in a
blue-collar workplace may be actionable in a white-collar, professional environment?
Thus, the decision might lead to the dismissal of cases the courts have entertained in
the past. At the very least, beyond its threshold endorsement of a same-sex cause of
action under Title VII, the Oncale decision appears to raise as many questions as it
One major aspect ofthe 1991 Civil Rights Act7' ofparticular importance to sexual
harassment claimants was the extension ofjury trials and compensatory and punitive
damages as remedies for Title VII violations. Previously, Title VII plaintiffs had no
Pub. L. 102-166, 105 Stat. 1071.
right to a jury trial and were entitled only to equitable relief in the form of injunctions
against future employer misconduct, reinstatement, and limited backpay for any loss
of income resulting from any discharge, denial of promotion, or other adverse
employment decision. Consequently, victims of alleged sexual harassment were often
compelled to rely on state fair employment practices laws,71or traditional common law
causes of action for assault, intentional infliction of emotional distress, unlawfbl
interference with contract, invasion of privacy, and the like, to obtain complete
monetary relief72 Section 102 of the 1991
altered the focus of federal EEO
enforcement from reliance on judicial injunctions, where voluntary conciliation efforts
fail, to jury trials, and compensatory and punitive damages, in Title VII actions
involving intentional discrimination.
Compensatory damages under the 1991 Act include "future pecuniary losses,
emotionalpain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and
other nonpecuniary losses."74 The compensatory and punitive damages provided by
9102 are "in addition to any relief authorized by Section 706(g)" of the 1964 Civil
Therefore, plaintiffs may recover damages in addition to equitable relief,
including backpay. Punitive damages may also be recovered against private employers
where the plaintiff can demonstrate that the employer acted "with malice or reckless
indifference" to the individual's federally protected rights. Punitive damages are not
recoverable, however, against a governmental entity.76In cases where aplaintiff seeks
compensatory or punitive damages, any party may demand a jury trial.77
The damages remedy under the Act is limited by dollar amount, however,
according to the size of the defendant employer during the twenty or more calendar
weeks in the current or preceding calendar year. The sum of compensatory and
punitive damages awarded may not exceed: $50,000 in the case of an employer with
more than 14 and fewer than 101 employees; $100,000 in the case of an employer
with more than 100 and fewer 201 employees; $200,000 in the case of an employer
with more than 200 and fewer than 501 employees; and $300,000 in the case of an
employer with more than 500 employee^.^' In jury trial cases, the court may not
inform the jury of the damage caps set forth in the statute.
E.g., Wirig v. Kinney Shoe Corp., 448 N.W. 2d 526,51 FEP Cases 885 (Minn. Ct,App.
1989), affd in part and rev'd in part on other grounds, 46 1 N.W.2d 374 (Minn. Sup.Ct.
72 See e.g. Rojo v. Kliger, 52 Cal.3d 65, 901 P.2d 373 (Cal. Sup.Ct. 1990); Baker v.
Weyerhauser Co., 903 F.2d 1342 (10" Cir. 1990); Syndex Corp. V. Dean, 820 S.W.2d 869
(Tex. App. 1991).
105 Stat. 1072,42 U.S.C. 8 1981a.
42 U.S.C. 8 1981a(b)(3).
Id. at 8 1981a(a)(l).
Id. at 5 198la(b)(l).
78 Id. at 5 198la(b)(3).
77 Id, at
A recent ruling by the Ninth Circuit Court of Appeals significantly increases the
amount of damages that may be awarded a former employee who proves harassment
or other intentional discrimination based on race, color, religion, sex, or national origin
under Title VII, or disability under the Americans with Disability Act. The trial judge
and jury in Gotthardt v. National Railroad7' awarded $350,000 in compensatory
damages and $124,010.46 back pay for lost wages to a 59-year-old woman who was
forced to quit her job due to posttraumatic stress syndrome caused by workplace
harassment. Because she claimed that her age, stress, and background would foreclose
a future job or career, the trial court also awarded the employee more than $600,000
in "front pay" to cover wages lost from the date of jury verdict forward for eleven
years. Amtrak argued that this front pay award must be included in the $300,000
statutory cap on damages as "future pecuniary losses" specifically covered by the
statute. Unfortunately for employers, however, the Ninth Circuit determined that front
pay is an equitable remedy, rather than legal damages, and therefore not subject to the
cap. There is currently a division in the federal circuits on this issue, but until the
Supreme Court finally resolves the dispute, the stakes for employers may be
considerable. The estimated monetary values of pending cases may be multiplied
several times ifjuries or judges can be persuaded by plaintiffs' attorneys to award front
pay for years, or even decades, into the future.
The expansion of Title VII remedies dramatically affects the level of relief
available in cases of intentional sex discrimination, where for the first time employees
in the private sector have the prospect of federal compensatory and punitive damage
recoveries and the right to a jury trial. The Act now provides a monetary remedy for
victims of sexual harassment in employment in addition to lost wages. Since
harassment of the hostile environment type often occurs without economic loss to the
employee, in terms ofpay or otherwise, critics of the prior law charged that the sexual
harassment victim was frequently without any effective federal relief Title VII
plaintiffs may now seek monetary compensation for emotional pain and suffering, and
other pecuniary and nonpecuniary losses, caused by sexual harassment. Moreover,
federal claims may be joined with pendent state-law claims for damages unlimited by
the caps in the federal law or an election made between pursuing state and federal
Liability of Employers and Supervisors for Monetary
The addition of monetary damages to the arsenal of Title VII remedies rekindled
inquiry into an employer's liability for harassment perpetrated by its supervisors and
nonsupervisory employees, and of the personal liability of individual harassers. The
Ellerth decision ratified the federal circuit courts, which had generally declared
employers vicariously liable for quid pro quo sexual harassment committed by
supervisorss0culminating in tangible job detriment. Only those with actual authority
191 F.3d 1148 (91hCir. 1999).
so See Horn v. Duke Homes, 755 F.2d 599, 604 (7thCir. 1985)(noting that all circuits
to hire, promote, discharge or affect the terms and conditions of employment can
engage in quid pro quo harassment and are held to act as agents of the employer,
regardless of their motivations. Quidpro quo harassment is viewed no differently than
other forms of discrimination prohibited by Title VII, for which employers have
routinely been held vicariously liable. Because Title VII defines employer to include
"any agenty' of the employer, the statute is understood to have incorporated the
principle of respondeat superior, in effect holding "employers liable for the
discriminatory [acts of] . . . supervisory employees whether or not the employer knew,
should have known, or approved of the supervisor's action^."^' However, the
suggestion in Meritor Savings Bank that courts look to agency law in developing
liability rules for hostile work environment led most lower federal courts to reject
vicarious liability for employers lacking actual or constructive knowledge of
environmental harassment perpetrated by a supervisor.
Prior to Ellerth and Faragher, most courts made an employer liable for a hostile
environment only if it knew or should have known about the harassment and failed to
take prompt remedial action to end it. They reasoned that, unlike quidpro quo cases,
in which a supervisor exerts actual authority to affect the terms, conditions, or
privileges of a subordinate's employment, the supervisor is cloaked with no actual or
apparent authority to create a hostile environment. In other words, the employer was
directly liable for its own wrongdoing in not stopping harassment of which it was or
should have been aware but was not automatically or "strictly" liable for supervisory
~ ~minority view, however, recognized vicarious liability when the
harasser was a supervisorg3and created a hostile environment through threats and
Similarly, an employer without actual or constructive knowledge was
generally not liable for co-worker harassment since the discriminatory conduct was not
within the scope of employment and the employer usually had conferred no authority,
reaching the issue have held employers strictly liable for quid pro quo harassment).
" Meritor Savings, 477 US. at 70-71.
See, e.g. Zirnrnerman v. Cook County Sheriffs Dep't, 96 F.3d 1017 (7' Cir.
1996)(employer not liable to plaintiff who complained of "personality conflict" with
supervisor since absent "an Orwellian program of continuous surveillance, not yet required
by law," the plaintiff must provide enough information to make a reasonable employer think
there was a possibility of sexual harassment); Lipsett v. University of Puerto Rico, 864 F.2d
88 1, 901 (1st Cir. 1988); Bouton v. BMW of North America, Inc., 29 F.3d 103 (3d Cir.
1994);Waltmanv. International Paper Co., 875 F.2d 468 (ShCir. 1989);Juarez v. Ameritech
Mobile Communications,Inc., 957 F.2d 3 17 (Th Cir. 1992);Burns v. McGregor Elec. Indus.,
995 F.2d 559 (8" Cir. 1992); Ellison v. Brady, 924 F.2d 872 ( 9 Cir.
83 Kaufinanv. Allied Signal, Inc., 970 F.2d 178 (6bCir.), cert. denied, 113 S.Ct. 831 (1992).
84 E.g.Karibian v. Columbia University, 14 F.3d 773, 780 (2d Cir. 1994)(actions of a
"supervisor at a sufficiently high level in the hierarchy would necessarily be imputed to the
real or apparent, to facilitate the haras~ment.~'This negligence theory of employer
liability continues to govern cases alleging harassment by co-workers and customer^.^^
Vicarious Employer Liability and the EllerthLFaragher Affirmative
A different set of liability principles was adopted by the Supreme Court for
supervisory harassment in Ellerth (supra) and Faragher v. City of Boca Raton."
While working as a lifeguard for the Parks and Recreation Department of the City of
Boca Raton, Faragher and a female colleague were subjected to offensive touching,
comments, and gestures from two supervisors. Neither lifeguard complained to
department management at the time of their employment or when they resigned. In
addition, lifeguards had almost no contact with City officials because they were
employed at locations far removed from City Hall. However, after resigning from their
positions for reasons unrelated to the alleged harassment, Faragher sued the City under
Applying agency principles, the district court held the city directly liable based on
the supervisory authority of the harassing employees and overall workplace structure,
and indirectly liable because the harassment alleged was severe and pervasive enough
to support an inference of knowledge, or constructive knowledge by the City. The
Eleventh Circuit en banc rejected both theories and reversed. "An employer will rarely
be directly liable for hostile environment harassment," the appeals court observed,
because ongoing physical and verbal harassment falls outside the scope of the
supervisor's employment and is unaided by the agency relationship. Nor was the court
persuaded that city officials h e w , or should have known, of the harassment.
As in Ellerth, the Faragher Supreme Court largely abandoned the legal
distinction between quidpro quo and hostile environment harassment, looking instead
to agency principles as guides to employer liability for supervisory misconduct.
Justice Souter's majority opinion reiterated Ellerth's determination that sexual
harassment by a supervisor is not within the scope of employment. But because a
supervisor is "aided" in his actions by the agency relationship, a more stringent
vicarious liability standard was warranted than pertains to similar misconduct by mere
co-workers, where the employer is liable for negligence only if he fails to abate
conditions of which he " h e w or should have known." "When a person with
See e.g. Torres v. Pisano 116 F.3d 625 (2d Cir. 1997)(university not liable for hostile
environment where plaintiff complained to university official but told him to "keep it
confidential."); Baker v. Weyerhauser Co., 903 F.2d 1342 (1Oth Cir. 1990): Steele v. Offshore
867 ~.2d-1311(1 1" ~ i r1989);
~wentekv.USAir, I&:, 830 F.2d 552 (4"
86 See, e.g., Coates v. Sundor Brands, Inc., 164 F.3d 1361 (1 l'h Cir. 1999)(employer not
liable for co-worker harassment where plaintiff never directly discussed matter with
supervisor); Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (lo" Cir. 1998)("an employer may
be held liable for the harassing conduct of its customersnonlyon the basis of negligence, i.e.
if it "fails to remedy or prevent a hostile or offensive work environment of which managementlevel employee's knew, or in the exercise of reasonable care should have known.").
524 U.S. 775 (1998).
supervisory authority discriminates in the terms and conditions of subordinates'
employment, his actions necessarily draw upon his superior position over the people
who report to him, or those under them, whereas an employee generally cannot check
a supervisor's abusive conduct the same way that she might deal with abuse from a coworker."
The Court also determined, however, that public policy considerations were
important in crafting employer liability rules. The congressional design behind Title
VII favored both the creation of anti-harassment policies and effective grievance
mechanisms by employers, and a coordinate duty on the part of employees to avoid or
mitigate harm. To accommodate these Title VII policies and agency principles of
employers' vicarious liability, the Court in Ellerth and Faragher adopted a composite
standard which for the first time explicitly allows employers an affirmative defense to
liability for environmental harassment caused by supervisory misconduct. According
to the seven Justice majorities in both cases:
An employer is subject to vicarious liability to a victimized employee for an
actionable hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee. When no tangible employment
action is taken, a defending employer may raise an affirmative defense to liability
or damages, subject to proof by a preponderance of the evidence . . . . The defense
comprises two necessary elements: (a) that the employer 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 preventative or
corrective opportunities provided by the employer or to avoid harm otherwise.
While proof that an employer had promulgated an antiharassment policy with
complaint procedure is not necessary in every instance as a matter of law, the need
for a stated policy suitable to the employment circumstances may appropriately be
addressed in any case when litigating the first element of the defense. And while
proof that an employee failed to fulfill the corresponding obligation of reasonable
care to avoid harm is not limited to showing an unreasonable failure to use any
complaint procedure provided by the employer, a demonstration of such failure will
normally suffice to satisfy the employer's burden under the second element of the
The affirmative defense is unavailable, however, and employers are strictly liable for
harassment of subordinate employees by their supervisors perpetrated by means of a
"tangible employment action," such as discharge, demotion, or undesirable
The affirmative defense adopted by the Court in Ellerth and Faragher imposes
a duty of care on both the employer and the employees to prevent workplace
harassment and to mitigate it effects. The first line of defense for the employer is to
adopt and communicate to its staff and management an effective sexual harassment
policy and complaint procedure. In most cases, the failure to do so -at least in the
case of large employers, like the city government in Faragher -will result in strict
liability for any harassing conduct by supervisory employees, whether or not the
alleged victim suffers any adverse employment action. Questions remain, however,
as to scope of that legal obligation, particularly in relation to smaller employers, since
the Court's formulation appears to leave open the possibility that corrective actions
short of a formalized anti-harassment policy may be reasonable, at least in some
circumstances. Thus, considerations of employer size and resources, and the structure
of the workplace - e.g., whether a single location or on scattered sites - may be
Similarly, the latest High Court decisions place the burden on aggrieved
employees to avail themselves of corrective procedures provided by the
employer-thereby mitigating damages caused by the alleged harassment - or risk
having their claim legally barred. However, whether an employee's failure to take such
saving action would be deemed "unreasonable" if the complainant is able to
demonstrate the inadequacy of the employer's grievance procedure, that employees
had suffered retaliation for invoking the procedure in the past, or that harassing
supervisors previously had not been disciplined for their action, is not addressed by the
Court. Nor do the decisions specifically address the fate of employers denied the
benefit of the affirmative defense because an employee followed the complaint
procedure set forth in the employer's anti-harassment policy. Is strict employer
liability the rule in such cases, or is the issue to be decided in light of the overall
appropriateness of the employer's remedial response? Thus, many questions remain
for lower courts to decide in regard to the employer's assertion of an affirmative
defense. Consequently, while clarifying the law to some extent, it may take the courts
years to flesh out the concept of "reasonable care," "correct promptly," "unreasonably
failed," and "tangible employment action," all key elements in the Court's definition
of the employer's affirmative defense.
Judicial Developments After Ellerth and Faragher
Some guidance may be gleaned from later federal appeals court decisions that
have grappled with issues left unresolved by Ellerth and Faragher. Much judicial
attention has focused on whether conduct alleged by the plaintiff amounts to a tangible
employment action, nullifying the employer's affirmative defense, and to the adequacy
of any corrective action taken by the employer in response to alleged harassment.
Aside from hiring, discharge, promotion or demotion, and benefits decisions having
direct economic consequences, an employment action may be "tangible" if it results in
a significant change in employment status. In Durham Life Ins. Co v. Evans,88a
tangible employment action was found when the employer took away the plaintiff's
private office and secretary, denied her of files and control of funds provided by clients
in order to pay premiums, and assigned her a large number of lapsed accounts. The
Third Circuit reasoned, "[ilf an employer's act substantially decreased an employee's
earning potential and caused significant disruption in his or her working conditions, a
tangible adverse employment action may be found." Reinhold v. Commonwealth of
V i r g i n i ~ on
, ~ ~the other hand, found no such action where the harassing supervisor
"dramatically increased" the plaintiffs workload, denied her the opportunity to attend
aprofessional conference, and generally gave her undesirable assignments. The Fourth
Circuit ruled against the plaintiff because she had not "experienced a change in her
employment status akin to a demotion or a reassignment entailing significantly different
166 F.3d 139, 153 (3d Cir.1999).
151 F.3d 172 (4thCir.1998).
job responsibilitie~."~~Similarly, in Watts v. Kroger Co. ," the affirmative defense
was permitted to an employer who had altered the plaintiffs work schedule - such
that she was required to give up her second job which had previously been
accommodated - one week after complaining of sexual harassment by her supervisor.
According to the Fifth Circuit: "Simply changing one's work schedule is not a change
in [plaintiffs] employment status. Neither is expanding the duties of one's job as a
member of the produce department to include mopping the floor, cleaning the chrome
in the produce department, and requiring her to check with her supervisor before
taking breaks." And an employee alleging sexual harassment who ultimately quit her
job could point to no "tangible" detriment where there was no showing of change in
salary, benefits, duties, or prestige, but only "rude and uncivil behavior" by the
employer.92 But where a significant change of status resulted in the plaintiff being
given a new, less prestigious position - amounting, in effect, to a demotion - a tangible
employment action was found by another Fifth Circuit
The first prong of the affirmative defense requires the employer to show that it
took reasonable care to prevent and promptly correct harassment. Most courts have
read Ellerth to require, at a minimum, that the employer establish, disseminate, and
enforce an anti-harassment policy and complaint procedure. Thus, in Durham Life Ins.
Co., the defendant was denied the Ellerth affirmative defense because plaintiff "was
never given any literature or provided any information about the procedure to report
sexual harassment and had no idea where such information could be ~ b t a i n e d . "The
court held that the employer's policy must be disseminated to all employees and
provide an assurance that the harassing supervisor can be bypassed in registering a
complaint. The defendant's complaint system in Wilson v. Tulsa Junior Collegeg5was
found to be inadequate because it did not contain a provision for complaints to be filed
after normal office hours. Plaintiff was a custodian and the harassment occurred
during the evening shift. As a result, the employer was not entitled to the affirmative
defense. And if the plaintiffs failure to invoke the employer's formal complaint
procedures is not "unreasonable," the employee may still prevail. In Sharp v. City of
Houston, the employee presented evidence that lodging a complaint was forbidden the
"code of silence" which operated within the police department where she worked.
Anyone using the reporting procedure would "suffer such a pattern of social ostracism
and professional disapprobation that he or she would likely sacrifice a career in [the
department]."96 She also demonstrated that procedures for bypassing the harassing
supervisors were ineffective. Judgment against the city was affmed.
"Id. at 175.
170 F.3d 505,5 10 (ShCir. 1999).
92 Webb v. Carcliothoracic Surgery Associates, 139 F.3d 532 (5" Cir. 1998).
93 Sharp v. City ofHouston, 164 F.3d 923 (5' Cir. 1999)@laintiffs transfer from prestigious
Mounted Patrol to less prestigious Police Academy, although voluntary, was compelled by
sexual harassment and retaliation and supportedjudgment against city).
94 Supra n. 87, at p. 162.
95 164 F.3d 534 (1Oth Cir. 1998)
" 164 F.3d at 931-32.
Beyond adopting an anti-harassment policy and procedures for its employees, the
employer must undertake immediate and appropriate corrective action - including
discipline proportionate to the seriousness of the offense - when it learns of a
violation.97 Whether the employer has responded in a prompt and reasonable manner
depends on all the underlying facts and circumstances, and the harassment victim's
own conduct may be a relevant factor. Thus, in Coates v. Sundor Brands, I ~ C .the
Eleventh Circuit found that the employer's reaction to a complaint was adequate, even
though delayed for a period of twenty months, because the employee's initial
allegations were not suficiently specific to warrant an earlier response by the
employer. The plaintiff originally requested that no work assignment be changed,
forcing her continued regular contact with the harasser, and repeatedly assured the
human resources manager that the circumstances were fine. The employer took
immediate action to suspend the harasser when the plaintiff was finally candid about
her problems.99 In some cases, alleged harassers who were discharged but later
exonerated have sued their employers. The employer has usually prevailed, however,
as long as the decision to fire or otherwise discipline the suspected perpetrator was
based on a good kith belief of misconduct after an adequate investigation was
performed. "The real issue is whether the employer reasonably believed the
employee's allegation [of harassment] and acted on it in good faith, or to the contrary,
the employer did not actually believe the co-employee's allegation but instead used it
as a pretext for an otherwise discriminatory dismissal."100
Even before the High Court's latest decisions, lower court rulings suggested that
the most effective defensive strategy for employers to avoid liability for a hostile work
environment was a proactive approach. Thus, in McKen.de v. Illinois Department of
ran sport at ion,'^' the "prompt and remedial action" taken by the state employer in
barring hrther workplace contacts between the allegedly harassing co-worker and the
complainant was held to prevent recovery on a hostile environment claim In addition,
See Skidrnore v. Precision Printing and Packaging, Inc., 188 F.3d 606 (Sh Cir.
1999)(employernot liable because it took "prompt remedial action" when it instructed alleged
harasser to leave plaintiffalone and moved her to a new shlfi even though no investigation was
conducted until complaint was filed with EEOC six months later); Mockler v. Multnomah
County, 140 F.3d 808 813 (9thCir. 1998).
164 F.3d 1361 (11th Cir. 1999).
99 See also Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5" Cir. 1999)(employernot
liable for a vice president's sexual harassment when it took prompt and effective action upon
learning of the situation); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708,7 15 (2d Cir.
1996)(employer's response prompt where it began investigationon the day that complaint was
made, conducted interviews within two days, and fired harasser within ten days); Steiner v.
Showboat Operating Co., 25 F.3d 1459 (9" Cir. 1994), cert. denied, 513 US. 1082
(1995)(employer's response to complaints inadequate despite eventual discharge of harasser
where it did not seriously investigate or strongly reprimand supervisor until after plaintiff filed
charge with state FEP agency).
Waggoner v. City of Garland Tex., 987 F.2d 1160,1165 (5&Cir. 1993). See also Cotran
v. Rollins Hudig Hall International, Inc., 17 Cal. 4th93 (1998); Morrow v. Wal-MartStores,
Inc., 152 F.3d 559 (7" Cir. 1998).
lo' 92 F.3d 473 (Th Cir. 1996).
the courts have generally been reluctant to impose Title VII liability on employers who
act b'prophylactically" to stem harassing conditions before they begin. This is
illustrated by Gary v. Longio2where the D.C. Circuit dismissed a hostile environment
lawsuit against the Washington Metropolitan AreaTransit Authority (WMATA) as the
result of repeated verbal and physical harassment, and eventual rape, of a female
employee by a supervisor. Claims of quid pro quo harassment were rejected due to
lack of economic detriment. Moreover, WMATA escaped liability on the hostile
environment claim because it had an "active and firm" policy against the sexual
harassment which it publicized through staff notices, seminars, and EEO counselors,
and because it maintained detailed grievance procedures for reporting acts of
The practical lesson for employers is to formulate and communicate to employees
a specific policy forbidding workplace harassment; to establish procedures for
reporting incidents of harassment that bypass the immediate supervisor of the victim
if he or she is the alleged harasser; to immediately investigate all alleged incidents and
order prompt corrective action (including make-whole relief for the victim) when
warranted; and to appropriately discipline the harasser.
Personal Liability of Harassing Supervisors and Co-workers
Some division of judicial opinion persists, again because "agent[s]" are included
within the Title VII definition of "employer," as to the personal liability of individual
supervisors and co-workers for hostile environment harassment or other discriminatory
conduct. A majority of federal circuit courts to address the question-the Second,lo3
Fifth,i04 S e ~ e n t h , " ~Ninth,lo6 Tenth1'' and Eleventhlo8 and District of
C~lwnbia'~~-have interpreted agents in the statutory definition as merely
incorporating respondeat superior and refused to impose personal liability on agents.
These courts also note the incongruity of imposing personal liability on individuals
while capping compensatory and punitive damages based on employer size, as the
statute does, and exempting small businesses that employ less than 15 persons from
Title VII altogether. Of the Courts of Appeals, only the Fourth Circuiti'' has extended
Title VII liability to supervisors in both their personal capacity where the supervisor
59 F. 3d 1391 (D.C. Cir 1995). See also, Farley v. American Cast Iron Pipe Company,
115 F.3d 1548 (1 lthCir. 1997).
Tornka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995).
Grant v. Loan Star Co., 21 F.3d 649 (5' Cir.), cert. denied, 115 S . Ct. 574 (1994).
EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276 (7" Cir. 1995).
lo6 Miller v. Maxwell's Int'l Inc., 99 1 F.2d 583 (9" Cir. 1993), cert. denied, 114 S. Ct. 1049
Haynes v. Williams, 88 F.3d 989 (10" Cir. 1996).
Busby v. City of Orlando, 93 1 F.2d 764 (1 lthCir. 1991).
Gary v. Long, 59 F.3d 1391 (D.C. Cir. 1995), cert, denied, 116 S.Ct. 569 (1995).
' l o See Paroline v. Unisys Corp., 879 F.2d 100 (4" Cir. 1989), rev'd in part, afYd in relevant
part, 900 F.2d 27 (4" Cir. 1990) (en banc).
exercised significant control over the plaintiffs hiring, firing, or conditions of
employment. The First Circuit, the Third Circuit, the Sixth Circuit, and the Eight
Circuit have yet to decide the issue, leading to contradictory results among the district
courts in those jurisdictions. ' I
Sexual Harassment in the Schools
Issues surrounding the legal responsibility of school districts or other educational
authorities for sexual harassment within the schools are highlighted by recent media
reports of harassment of students by teachers and of disciplinary proceedings against
students for alleged sexual abuse or unwanted displays of affection directed at their
peers. Title IX of the 1972 Education Amendments provides that "[no] person in the
United States shall, on the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any education program or
activity receiving Federal financial as~istance."~'~
Under the statute, student victims
of any form of sex discrimination, including sexual harassment, may file a written
complaint with the Office of Civil Rights (OCR)'13for administrative determination and
possible imposition of sanctions-including termination of federal funding-upon the
offending educational institution. In addition, school personnel who harass students
may be sued individually for monetary damages and other civil remedies under 42
U.S.C. 5 1983 prohibiting the deprivation of federally protected rights under "color of
Title IX also provides student victims with an avenue ofjudicial relief. In Cannon
v. University of Chicago, ' I 4 the Supreme Court ruled that an implied right of action
exists under Title IX for student victims of sex discrimination who need not exhaust
their administrative remedies before filing suit. However, the availability of monetary
damages under Title IX remained uncertain until Franklin v. Gwinnett County Public
S ~ h o o l s . ' In
' ~ Franklin, a female high school student brought an action for damages
under Title IX against her school district alleging that she had been subjected to sexual
harassment and abuse by a teacher. The Supreme Court held that damages were
available to the sexual harassment victim if she could prove that the school district had
intentionally violated Title IX. After Franklin, Title IX had been held to prohibit both
quid pro quo and hostile environment teacher-student harassment. There was less
judicial consensus, however, regarding legal standards for holding an educational
institution liable for a sexually hostile educational environment created by student or
The appropriate standard for measuring a school district's liability for sexual
abuse of a student by a teacher remained unsettled until the Supreme Court ruling in
See Hernandez v. Wangen, 938 F. Supp. 1052 (D.P.R. 1996) and cases listed therein.
20 U.S.C. 5 1681 (a).
34 C.F.R. 5 100.7(d)(1)(1995).
441 U.S. 677 (1979).
503 U.S. 60 (1992).
Gebser v. Lago Vista Independent School District. ' I 6 The federal courts of appeals
and district courts had adopted a variety of standards, including strict liability;Il7 a
"knew or should have known" negligence standard;"' a theory of intentional
or imputed liability based on principles of agency law.I2O In a series
of three rulings, the Fifth Circuit has rejected each of these approaches in favor of a
more stringent standard requiring "actual knowledge" by responsible school officials.121
On June 22,1998, in Gebser, the Supreme Court answered the question of what
standard of liability to apply to school districts under Title IX where a teacher harasses
a student without the knowledge of school administrators. Jane Doe, a thirteen year
old student, had been sexually abused by a teacher, but there was no evidence that any
school official was aware of the situation until after it ended. Instead of strict liability
or theory ofconstructive notice, Doe relied on the familiar common law principle later
applied by the Court in Ellerth and Faragher that an employer is vicariously liable for
an employee's injurious actions, even ifcommitted outside the scope of employment,
if the employee "was aided in accomplishing the tort by the existence of the agency
According to this theory, the harasser's status as a teacher made his
abuse possible by placing him in an authoritative position to take advantage of his
adolescent student. Because teachers are almost always "aided" by the agency
relationship, however, and application of the common law rule "would generate
vicarious liability in virtually every case of teacher-student harassment," the Fifth
Circuit rejected the approach in favor of its actual knowledge standard.
In a 5 to 4 opinion by Justice O'Connor, the Supreme Court affirmed, avoided
any comparison to the strict liability and affirmative defense framework promulgated
for Title VII employment law. It held that a student who has been sexually harassed
by a teacher may not recover damages against the school district "unless an official of
the school district who at a minimum has authority to institute corrective measures on
the district's behalf has actual knowledge of, and is deliberately indifferent to, the
teacher's misconduct." The differing legislative constructs of Title VII and Title IX,
See Bolon v. Rolla Public Schools, 917 F. Supp. 1423 (E.D.Mo. 1996).
'I8 Deborah 0 . v. Lake Central School Corp. 61 F.3d 905 (7" Cir. 1995)(school liable if it
"knew or should have known about the harassment and yet faded to take appropriate remedial
'19 RLR v. Prague Public School District I-103,838 F. Supp. 1526 (W.D.Okla. 1993)(school
district not liable for sexual abuse by basketball coach because parents of student victim
"failed to come forward with any facts showing the custom or policy, acquiescence in,
conscious disregard of, or failure to investigate or cfiscipline on the part of the school
I2O Doe v. Claibome County, Tennessee, 103 F.3d 495 (6" Cir. 1996)(institution not liable
unless teacher is aided in the harassment by an agency relationship with the institution).
12' CanutiUo Independent School District v. Leija, 101 F3d 393 (5" Cir. 1996); Rosa H. v.
San Elizario Independent School District, 106 F.3d 648 (5&Cir. 1997); Doe v. Lago Vista
Independent School District, 106 F.3d 1223 (5" Cir. 1997).
Id. at 1225 (citing Restatement (Second) of Agency 8 2 19(2)(d)(l958).
and an apparent reluctance to impose excessive financial liability on schools, appeared
to drive the Court's decision.
Unlike Title VII, Title IX has been judicially determined to provide only an
"implied" private right of action and rather than a statute of general application, it
imposes legal obligations only as a condition to the receipt of federal financial
assistance. These distinctions persuaded the Court to "shape a sensible remedial
scheme that best comports with the statute" and its legislative history. In analyzing
congressional intent, the Court examined the statutory provisions for Title IX
enforcement by means of federal agency termination of federal funds to noncomplying
school districts following notice and opportunity to be heard. Given the express notice
requirement of the statute, the majority felt it unfair to impose a vicarious or
constructive notice standard on school districts in private lawsuits. Moreover, there
was concern that the award of damages in any given case might unfairly exceed the
amount of federal fbnding actually received by the school. Consequently, there was
no actionable Title IX claim since responsible school administrators were without
notice or "actual knowledge" of the alleged sexual relationship. The Court summarily
noted that Lago Vista's failure to promulgate and publicize an anti-harassment policy
and grievance procedure, as mandated by U.S. Department of Education regulations,
established neither actual notice, deliberate indifference, or even discrimination under
The dissenters argued that the rationale for Title VII respondeat superior or
vicarious liability - to induce the employer to take corrective action and limit
damages -also applied to Title IX sexual harassment. Justice Stevens contended that
the majority's rule creates the opposite incentive, encouraging schools to insulate
themselves from knowledge, and predicted that few Title IX plaintiffs who have been
sexually harassed will be able to recover damages under "this exceedingly high
standard." In addition to urging vicarious liability, Justice Ginsburg proposed to
permit schools, akin to the standard in Faragher, to assert internal procedures as an
Davis v. Monroe County Board of Education, decided in 1999, addressed the
standard of liability that should be imposed on school districts to remedy student-onstudent haras~ment."~The plaintiff in Davis alleged that her fifth-grade daughter had
Prior to Davis, the federal appeals courts were divided between those which refused to
award Title IX damages or injunctive relief against a school district for student-on-student or
"peer" sexual harassment, Rowinsky v. Bryan Independent School District, 80 F.3d 1006 (5'
Cir.), cert. denied 519 U S . 861 (1996), Davis v. Monroe, 120 F.3d 1390 (I l'h Cir. 1997),
and others, which had applied agency principles and Title VII legal standards to hold school
officials liable for failure to take reasonable steps to prevent known hostile environment
harassment by students or other thud parties. Murray v. New York Univ. College of
Dentistry, 57 F.3d 243, 248-50 (2d Cir. 1995)(dlscussing Title VII standards in analyzing
Title IX sexual harassment claim); Brownv. Hot, Sexy and Safer Products, Inc., 68 F.3d 525,
540 (1st Cir. 1995)(applying ~ i l VII
e principles to Title IX hostile environment sexual
harassment claim), cert. denied 516 U S . 1159 (1996); and ClydeK. v. Puyallup School Dist.,
35 F.3d 1396, 1402 (gthCir. 1994)("school officials might reasonably be concerned about
liability for failing to remedy peer sexual harassment that exposes female students to a hostile
been harassed by another student over aprolongedperiod- a fact reported to teachers
on several occasions -but that school officials had failed to take corrective action.
Justice O'Connor, writing for a sharply divided court, determined that the plaintiff had
stated a Title IX claim. Because the statute restricts the actions of federal grant
recipients, however, and not the conduct of third parties, the Court again refused to
impose vicarious liability on the school district. Instead, "a recipient of federal funds
may be liable in damages under Title IX only for its own misconduct." School
authorities' own "deliberate indifference" to student-on-student harassment could
violate Title IX in certain cases. Thus, the Court held, where officials have "actual
knowledge" of the harassment, where the "harasser is under the school's disciplinary
authority," and where the harassment is so severe "that it can be said to deprive the
victims of access to the educational opportunities or benefits provided by the school,"
the district may be held liable for damages under Title IX.
In qualifying the Davis standard, the Court suggests that student harassment may
be far more difficult to prove than sexual harassment in employment. Beyond requiring
"actual knowledge," Justice O'Connor cautioned that "schools are unlike adult
workplaces" and disciplinary decisions of school administrators are not to be "second
guess[ed]" by lower courts unless "clearly unreasonable" under the circumstances.
Additionally, the majority emphasized that "damages are not available for simple acts
of teasing and name-calling among school children, even where these comment target
differences in gender." In effect, Davis left to school administrators the task of
drawing the line between innocent teasing and actionable sexual harassment - a
difficult and legally perilous task at best.
On March 13, 1997, before the Supreme Court ruling in Gebser, OCR issued a
policy guidance addressing the institutional liability of school districts for harassment
of students by teachers or other students. That policy states that a school district or
other funded educational agency may be liable under Title IX if the institution knew,
or should have known, that a student was being subjected to hostile environment
sexual harassment by other students and fails to take appropriate corrective action.
For quid pro quo harassment of a student by a teacher or other employee-involving,
for example, use of grading authority to extort sexual favors-a district "will always
be liable for even one instance" of abuse, regardless of its actual or constructive
knowledge. Liability for a "hostile or abusive educational environment" attaches,
according to OCR, if the harassing teacher or employee "reasonably" appeared to act
on the school's behalf, i.e. with "apparent authority" or was "aided" in the harassment
by reason of "position of authority" with the institution. A school district is also liable
under the guidance if it fails to take immediate and appropriate steps to remedy known
harassment.'" These standards appear to conflict with Gebser and Davis insofar as
they would permit finding an institution liable for student harassment based on
"constructive knowledge"- that is, what school administrators reasonably should have
known - or the "apparent authority" of the alleged harasser, regardless of what they
Sexual Harassment Guidance: Harassment of Students by School Employees, Other
Students, or Third Parties, 62 Fed. Reg. 12034, 12039-40 (1997).
Violence Against Women Act
The Violence Against Women Act (VAWA) was enacted by Congress in 1994
"to protect the civil rights of victims of gender-motivated violence." It imposed new
criminal penalties for certain specified offences and created a private cause of action
for civil damages against persons who perpetrate "crime[s] of violence motivated by
gender."'25 Specific "crimes of violence" triggering statutory coverage include "State
or Federal offenses" that would constitute "a felony against the person. . .or a felony
against the property," as recognized by federal law,126and which pose "a serious risk
of physical injury to another," whether or not the misconduct alleged ever resulted in
actual charges or a prior criminal action. To be actionable under VAWA, however,
the complainant has to show that the offense was "motivated by gender," i.e., that the
predicate crime was committed "because of gender or on the basis of gender,"'27and
was at least partially due to "an animus based on the victim's gender."
According to the legislative history, "proof of 'gender motivation' under Title 111"
of VAWA is to "proceed in the same ways proof of race or sex discrimination
proceeds under other civil rights laws. Judges and juries will determine 'motivation'
from the 'totality of the circumstances' surrounding the event."'28 In this regard, legal
standards for proof of "hate crimes" may be "usefbl," such as "language used by the
perpetrator; the severity of the attack (including mutilation); the lack of provocation;
previous history of similar incidents; absence of any other apparent motive (battery
without robbery, for example); common sense."'29 In other words, no cause of action
will lie for injury resulting from mere "random" acts of violence, regardless of the
gender of the victim, where it is not proven that the perpetrator was gendermotivated.130
The enforcement mechanism provided for this new right to be free of gendermotivated violent crime is a private civil action in federal (or state) court. The
prevailing plaintiff in a judicial action may obtain compensatory and punitive damages,
injunctive relief, and "such other relief as the court deems appropriate." While
predicated upon conduct that is made criminal by other federal and state law
provisions, the statute does not require a prior criminal complaint, prosecution, or
conviction to establish the elements of a cause of action. No federal adrmnistrative
42 U.S.C. 5 13981.
18 U.S.C. 5 16. In effect,the bill incorporates the existing federal criminal code definition
of "crime of violence" as predicate for a civil rights violation under VAWA.
127 Id. at 3 13981(e)(l).
12'S. Rep. No. 103-138,at 52 (1992).
Iz9 Id. at 52 n. 61.
130 Under evidentiary standards prescribed by fj 1398 1(e)(l), the complainant must prove
gender motivation "by a preponderance of the evidence."
scheme is authorized for VAWA enforcement.13' But parallel civil and criminal
proceedings for conduct which constitutes a VAWA offense are not precluded.
To some extent, VAWA overlapped and supplemented the protection of Title
VII for women victimized by gender-motivated violence and harassment in the
workplace. Title VII applies only to employment, but even there excludes a large
segment of the national workforce employed by companies and firms with fewer than
15 employees. A condition precedent to a Title VII judicial action is that the
complaining employee or applicant first resort to the EEOC administrative process for
voluntary negotiation and conciliation of the matter between the parties. Moreover,
while the 1991 amendments added provisions for jury trials and compensatory and
punitive damage awards in Title VII actions, such relief is limited by monetary "caps"
that find no parallel in later law. The element of "violence," however, is not a requisite
of the offense under either the Title VII or Title IX.
The 1994 law's statement ofpurpose anchored the civil rights remedy for gendermotivated violence to the "affirmative" power of Congress under the Commerce
Clause of the U S . Constitution and 5 5 of the Fourteenth Amendment. Congressional
power to prohibit or remedy equal protection or due process violations has historically
been limited by judicial construction of the Fourteenth Amendment to "state action"
or private conduct actively supported by the state or its agents. As discussed below,
the power of Congress to regulate purely private conduct pursuant to its $5 power,
alwaysproblematic, may now be a dead letter. Similarly,recent Supreme Court rulings
have largely eviscerated congressional authority to regulate non-economic activities
"affecting commerce" by application of civil or criminal sanctions.
In United States v. Lopez,132the Supreme Court invalidated, as exceeding
Congress' commerce powers, the Gun-Free School Zones Act of 1990133,which made
a federal offense of possessing a firearm within 1,000 feet of a school. As traditionally
applied, the Commerce Clause permits Congress to regulate "use of the channels" and
"instrumentalities" of interstate commerce, as well as activities within a state that
"substantially affect" its flow. Despite the absence of congressional findings, the
Government in Lopez claimed that the statute regulated an activity which substantially
impacted interstate commerce because possession of firearms in a school zone may
result in an increase in violent crime. Criminal violence, in turn, affects the national
economy by increasing insurance costs, reducing the willingness of persons to travel
to areas of the country perceived as unsafe, and by diminishing productivity due to
impaired student learning environments. The Supreme Court concluded, however, that
the regulated activity-firearm possession within a school zone-was beyond
Congress' constitutional reach since it had "nothing to do with 'commerce' or any sort
of economic enterprise, however broadly one might define those terms." The Court
13' This is in contrast to the voluntary negotiation and conciliation procedures of the Equal
Employment Opportunity Commission which must be pursued before filing a federal lawsuit
seekmg relief from sexual harassment in the workplace under Title VII of the 1964 Civil
Rights Act. 42 U.S.C. $$ 2000e et seq.
514 U.S.549 (1995).
18 U.S.C. $ 922(a)(l)(A).
rejected the Government's "cost of crime" argument as an overly expansive theory
which would permit Congress to "regulate not only all violent crime, but all activities
that might lead to violent crime, regardless of how tenuously they relate to interstate
commerce." Were this argument successful, the Court reasoned, "it is difficult to
perceive any limitation on federal power, even in areas such as criminal law
enforcement or education where States historically have been sovereign."
The first criminal prosecution under VAWA involved a husband who was
convicted of interstate domestic violence for severely beating his wife in their home
and subsequently dnving her in and out of West Virginia for a period of five days
before taking her to a hospital in Kentucky. On appeal, in United States v. Bailey,'34
the defendant challenged his conviction on the grounds that the interstate domestic
violence statute, 18 U.S.C. $2261(a), exceeded Congress' powers under Lopez since
it concerned neither "channels" nor "instrumentalities" of commerce, and was not
related in any "substantial" way to commercial activity. The Fourth Circuit disagreed,
upholding both the VAWA provision and the conviction. Lopez was distinguished as
not applicable to the domestic violence statute which required the crossing of a state
line, "thus placing the transaction squarely in interstate commerce." Constitutional
support for VAWA was drawn from earlier decisions approving the White Slave
' ~ ~ condemned transportation in
Traffic Act of 1910135and the Mann A C ~ which
interstate commerce for various "immoral" purposes. In other words, the Lopez
analysis was not relevant to the VAWA criminal provision, which incorporates an
interstate component similar to these earlier statutes and "requires the commission of
a crime of violence causing bodily injury, which certainly is not different from the
immoral purpose forbade in Cleveland and the debauchery forbade in Caminetti."
Likewise, the Eighth Circuit U.S. Court of Appeals in United States v. Wright13'
sustained a VAWA provision malung it a federal crime to cross a state line with the
intent to violate a state protective order and then to violate it.'38 A federal district
court had voided the statute on the grounds that crossing state lines to violate a
protective order was not a commercial activity and "does not substantially affect
interstate commerce." The appeals court agreed that the "affecting commerce" test
of Lopez was not germane but rejected the conclusion that crossing state lines for
noncommercial purposes is not interstate commerce. Judicial rulings upholding a
variety of federal offenses, from Mann Act to the crime of traveling in interstate
commerce to avoid prosecution, had consistently a f f m e d that "crossing state lines,
without more, is interstate commerce." Also relevant was the fact that the statute
required not only the crossing of a state line with prohibited intent, but that the
perpetrator actually act on that intent. The defendant's Tenth Amendment challenge
to the statute was also rejected.
112 F.3d 758 (4h Cir. 1997).
Caminetti v. United States, 242 U.S. 470 (1917).
Cleveland v. United States, 329 US.14 (1946).
128 F.3d 1274 (1997).
18 U.S.C. 5 2262(a)(l).
Early judicial challenges to VAWA's civil remedy provision had also affirmed a
relatively expansive interpretation of congressional power. In Doe v. Doe,I3' the
plaintiffalleged a pattern of "systematic and continuous" physical and emotional abuse
at the hands of her spouse over a seventeen year period resulting in severe emotional
distress, trauma, and depression. The defendant spouse moved to dismiss, claiming that
Congress lacked authority under either the Commerce Clause or the Fourteenth
Amendment to enact the VAWA remedy for gender-based violence. The federal
district court rejected the motion, however, finding support for Congressyjudgment
that violence against women was a "national problem with substantial impact on
interstate commerce." A "rational basis" for the legislation was found in "statistical,
medical, and economic data before the Congress" that was lacking in Lopez. The
Senate Report, for example, indicated that 50% of rape victims leave the work force
involuntarily and that "fear of gender-based crimes restricts movement, reduces
employment opportunities, increases health expenditures, and reduces consumer
spending, all of which affect interstate commerce and the national economy."140
Moreover, VAWA was found to "complement'' rather than encroach upon state
procedures because it remedied "deficiencies" in existing state and federal legal
protections against gender-based violence while preserving traditional state tort
remedies. The federal safeguards were further justified, said the Doe Court, given the
special harm, community unrest, and likelihood of retaliation, provoked by biasinspired crime.
The constitutionality of VAWA's civil damages remedy for gender-based
violence141had been sustained by eleven federal district courts when the Fourth Circuit
en banc reversed an earlier panel decision and invalidated the statute.14' In U.S. v.
orris on,'^^ the Supreme Court affirmed the appeals court's conclusion that the civil
remedy provision of VAWA exceeded Congress' constitutional authority. The case
involved a civil action by a female Virginia Tech student against two male student
athletes who verbally berated and raped her three times within minutes of their first
meeting. Administrative proceedings against the perpetrators under the university's
"Sexual Assault Policy" were dismissed or set-aside on two separate occasions, and
the sexual violence had gone unpunished by state officials, when the female victim
turned for relief to the federal courts. The district judge was convinced by the "totality
of circumstances" - including vulgar statements made by the defendants concerning
the assaults and the "gang rape" aspect of the case - that "gender animus" was the
underlying motivation for the crime. But he voided the statute, since to equate the
impact of gender-motivated crime with interstate commerce would "extend Congress'
power. . . and unreasonably tip the balance away from the states."
929 F. Supp. 608 (D.Conn. 1996).
%Rep. 138, 103d Cong., 1st Sess. 54 (1 993).
42 U.S.C. 3 13981(c).
'42 Bmnkala v. Virginia Polytechnic and State University, 169 F.3d 820 (4' Cir. 1999)(en
That decision was reviewed initially by a three-judge appellate panel, which
applied a "rational basis" standard in concluding that the "regulated activity"
substantially affected interstate commerce. In contrast to the congressional silence in
Lopez, the Brzonkala panel cited "voluminous findings" from the committee reports
on the social and economic costs of gender-motivated crimes which warranted judicial
deference and a "strong presumption of validity and constitutionality." In a an en
banc rehearing, the full Fourth Circuit reversed, finding it "impossible to link such
violence with a particular interstate market or with any specific obstruction of
interstate commerce." Rather, the relationship between gender violence and commerce
was too "attenuated" and indistinguishablefrom that existing "between any significant
activity and interstate commerce." Invoking federalism concerns, the court declined
to "rely[ ] on arguments that lack any principled limitations and [that] would, if
accepted, convert the power to regulate interstate commerce into a general police
These proceedings set the stage for the Supreme Court's long awaited decision
on May 16, 2000 in U.S. v. Morrison, holding that Congress had overstepped its
constitutional bounds when it passed the VAWA civil remedy. Declaring that "the
Constitution requires a distinction between what is truly national and which is truly
local," a five- Justice majority led by the Chief Justice rejected each of the two sources
of constitutional authority asserted by Congress to support the legislation. The law
was neither a valid regulation of interstate commerce nor a proper means of enforcing
the equal protection guarantee of the Fourteenth Amendment. The commerce clause
provided no basis for the Act, the Court said, despite the extensive record compiled
and the findings enacted that the problem of violence against women had a substantial
and deleterious effect on commerce. Just as the "noneconomic, criminal nature of the
conduct at issue" was crucial to the demise of the Gun-Free School Zone Act in Lopez,
gender-motivated crimes of violence were, for the majority, "not in any sense of the
phrase economic activity." Thus, congressionalfindings to the effect that gender-based
violence deterred travel or employment of victims, diminished national productivity or
added to national medical costs did not rationally support the legislation or require
deference by the Court. In addition, the findings were "substantially weakened" by
a "but-for causal chain," allowing "Congress to regulate any crime as long as the
nationwide, aggregated impact of that crime has substantial effects on employment,
production, transit, or consumption." Such reasoning was faulty under Lopez, the
majority argued, because it would permit federal regulation of family law and other
traditional areas of state concern, "completely obliterat[ing] the Constitution's
distinction between national and local authority."
Section 5 of the Fourteenth Amendment likewise provided no basis for the civil
remedy provision because the constitutional guarantee of equal protection is directed
at the states and its officials, not at private "individuals who have committed criminal
acts motivated by gender bias," who are the sole targets of the statute. Since the
VAWA civil remedy did nothing to the states or state officers, it was not a valid
exercise of the 5 enforcement power. The Court also noted that the statute applies
uniformly throughout the states, while the legislative record failed to demonstrate that
gender-motivated crimes occur equally in all states, or even most states. Therefore,
the VAWA remedy did not meet the judicial requirements of "congruence" and
"proportionality" with the problem it seeks to address. The Court did not explain why
Congress could not, if it decided the states were failing because ofprejudice or animus
to protect women, provide a federal remedy against private individuals.
Joining Chief Justice Rehnquist in the majority were Justices O'Connor, Scalia,
Kennedy, and Thomas. Justice Souter dissented, along with Justices Stevens,
Ginsburg, and Breyer, who charged that the majority with revision of the substantial
effects test under the commerce clause by discounting its "cumulative effects and
rational basis features." This "defect" in the majority's reasoning was its "rejection of
the Founders' considered judgment that politics, not judicial review, should mediate
between state and national interests as the strength and legislative jurisdiction of the
National Government inevitably increased through the expected growth of the national
United States v. Lanier
On March 3 1,1997, the U.S. Supreme Court vacated a ruling by the Sixth Circuit
U.S. Court of Appeals which had reversed the conviction of David Lanier, a Tennessee
Chancery Court judge, for willful deprivation of federal constitutional "rights,
privileges, or immunities" under color of law in violation of 18 U.S.C. 4 242. The
charges against Lanier stem fiom allegations that he raped, assaulted, or harassed eight
women in his chambers who either worked for the judge, worked with him, or had
cases pending before his court. The "right, privilege or immunity" allegedly violated
was identified as a Fourteenth Amendment due process guarantee of "bodily
integritym-specifically, the right to be free of sexual assault by a state official. After
a trial, Lanier was convicted on two felony and five misdemeanor counts of violating
$242 and was sentenced to a total of twenty-five years in prison. A panel of the Court
of Appeals for the Sixth Circuit affirmed the conviction and sentence, but the full court
overturned the decision and granted rehearing en
Invoking established rules of construction for criminal statutes, and the Supreme
Court ruling inscrews v. UnitedSt~tes,'~~
the en banc majority set-aside the conviction
on the grounds that existing 8 242 precedents failed to adequately notifl the public that
simple or sexual assault crimes invaded a constitutional right or liberty protected by the
statute. To avoid unconstitutional vagueness, a plurality of the Screws Court had
construed the statute to require proof of "specific intent" to deprive the victim of a
right "made specific either by the express terms of the Constitution. . .or by decisions
interpreting them." The Federal Government had argued that a due process right to
be free of unwarranted assault recognized by lower court decisions in other contexts
provided adequate notice of criminal conduct to be punished. But due to the statute's
"abstract" nature, and discrepancies among the circuits and federal district courts in
their recognition of "new" constitutional rights, Chief Judge Merritt felt that "[olnly
a Supreme Court decision with nationwide application can make specific a right that
can result in $ 242 liability" and only when the right had been made to apply in "a
factual situation fundamentallysimilar to the one at bar." The en banc court conceded
the "outrageous" nature of Judge Lanier's conduct, but found that since the Supreme
43 F.3d 1033 (6thCir. 1995).
325 U.S.91 (1945).
Court had not so ruled in a "fundamentally similar" situation, the supposed right to be
free of sexual assault could not form the basis for a federal prosecution.
Writing for a unanimous Supreme Court, Justice Souter faulted the Sixth Circuit
for applying too restrictive a standard and for concluding that $ 242 could never
incorporate "newly-created constitutional rights." The "fair warning" requirement in
Screws was not a "categorical rule" excluding from the universe of $242 safeguards
any right not specifically identified by prior Supreme Court decisional law. To
interpret the statute so restrictively, said the Court, was "unsound," contradicting both
the legislative and judicial history of the criminal civil rights provisions and decisional
law governing the corollary "clearly established" qualified immunity standard applied
by the courts to determine civil liability of state officials under 42 U.S.C. 1983. The
"touchstone" for imposing $242 criminal liability is whether the statute, either standing
alone or as construed by the courts at all levels, "made it reasonably clear at the
relevant time that the defendant's conduct was criminal." According to Justice Souter,
"general statements of the law" could provide "fair and clear warning" and may apply
"with obvious clarity," in at least some situations, even though the particular conduct
in question had not previously been held unlawful in precisely the same circumstances.
The Supreme Court's disposition of Lanier avoided decision of the main
substantive issue in the case-that is, the constitutional status of the right to be free
from sexual harassment and abuse at the hands of state officials Other aspects of the
ruling, however, and its contemporary legal background suggested the probable legal
outcome of the case on remand. First, in a concluding footnote the Court rejected "as
plainly without merit" several arguments-including the unavailability of 5 242 to
enforce due process rights-made by Judge Lanier and relied upon by the Sixth Circuit
to reach its earlier decision. This complicated the task of defending Judge Lanier's
position on remand. In his background discussion of the case, Justice Souter also
quotes with seeming approval from the trial judge's instruction to the jury that the
Fourteenth Amendment protection of bodily integrity includes "the right to be free
from certain sexually motivated physical assaults and coerced sexual battery." This
instruction appears to conform to the weight ofexisting lower federal court precedent,
includmg a Sixth Circuit decision since ~ 5 a n i e r ,making
' ~ ~ it difficult for the appeals
court to reiterate its earlier finding that Judge Lanier did not have "fair warning" that
his conduct violated constitutional rights.'47 In addition, Congress has enacted
legislation based on the assumption that $ 242 punishes sexual assaults. '48 Finally, the
Doe v. Claiborne County, 103 F.3d 495 (6" Cir. 1996).
147 See, e.g. Doe v. Taylor Independent School District, 15 F.3d 443, 451 (5" Cir.), cert.
denied, 115 S. Ct. 70 (1994)(teacher's sexual abuse of a student "deprived [the student] of
a liberty interest recognized under the substantive due process component of the Fourteenth
Amendment"); Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476, 479 (9th Cir.
l99l)@laintiff s constitutional right were violated in a 8 1983 case when she was raped by
a state welfare official); and Stoneking v. Bradford Area School District, 882 F.2d 720, 727
(3d Cir. 1989), cert. denied, 493 US. 1044 (1990)("the constitutional right. . .to freedom
from invasion of. . .personal security through sexual abuse, was well established" by the early
14' In the Violent Crime Control and Law Enforcement Act of 1994, Congress required
U.S. Justice Department brief in Lanier noted that it prosecutes thirty cases per year
under $ 242, many based on a due process right to bodily integrity. Since 1981, the
Civil Rights Division of DOJ had prosecuted at least twenty-nine $242 cases involving
sexual assault by public officials, most involving a woman who was sexually assaulted
by a jailor, police officer, or border patrol agent. However, three other cases besides
Lanier involved sexual assault by state judges-two resulting in guilty pleas, the third
In sum, Lanier questioned the fundamental nature of "constitutional crimes"
prohibited by $ 242, a statute notable for its definitional vagueness and described by
the court of appeals as "perhaps the most abstractly worded statute among the more
than 700 crimes in the federal criminal code." Since the federal "rights, privileges, or
immunities" whose official invasion may be the predicate for a $ 242 prosecution are
not plainly spelled out by statute, its scope has traditionally been determined by the
courts according to contemporary constitutional understanding of those terms. Justice
Souter, in his opinion, appears largely unmoved by respondent's argument that to
permit a $ 242 prosecution of Judge Lanier would encroach upon the traditional police
powers of the state and impermissibly "federalize," by judicial decree, state offenses
like rape and sexual assault into a federal "common law" of crime. Nonetheless, as
noted earlier, solicitude for federalism and our dual system of government was a factor
limiting Congress' commerce power to enact the Gun-Free School Zones Act in Lopez
and could inform judicial review of the corollary issue posed by Lanier. To what
extent, if any, such objections may influence renewed judicial consideration of the case
can only be speculated. At this point, however, Lanier appears to expand the general
availability of $ 242 as a safeguard against official deprivation of federal constitutional
rights and, in addition, may constitutionally buttress the civil remedy for gendermotivated violence in VAWA, at least as applied to acts of violence by governmental
agents or others acting under color of law.
enhanced punishment for several crimes in aggravated circumstances, including sexual
violence. That enhancement provision applied to violations of 5 242. See P.L. 103-322 8
320103(b)(3), 108 Stat. 2109.