Sexual Harassment Bait and Switch

Sexual Harassment Bait and Switch

February 27, 2008
Originally published in Point of Law

In sexual harassment cases, many courts play a game of bait and switch with employers. When they want to hold the employer liable, they claim that harassment requires no showing of wrongful or discriminatory intent at all, making the employer liable even for conduct that unintentionally offended the plaintiff, such as speech that the plaintiff overhears and is offended by. But when it comes time to impose or collect damages, they suddenly switch positions and claim that harassment is not only intentionally discriminatory, but willful and malicious.

Neither position is consistent with the language of the civil rights laws, which do require an intent to treat an employee differently based on her gender, but do not require a showing of malice or ill-will. Moreover, getting rid of any intent requirement raises serious First Amendment and Equal Protection problems.

When courts want to hold an employer liable, they dismiss as hopelessly insensitive the idea that good intentions or lack of discriminatory intent are a defense. For example, a court claimed in Ellison v. Brady, 924 F.2d 872, 880 (9th Cir. 1991), that even “well-intended compliments” can give rise to liability, because “Title VII is not a fault-based tort scheme,” and is aimed not at the discriminatory “motivation of co-workers or employers” but rather is aimed at the “consequences” of their behavior under a disparate-impact theory.

Similarly, another court recently overturned a jury verdict for an employer because the trial judge instructed jurors that discriminatory intent was an element of a harassment claim. Huff v. Sheehan, 493 F.3d 893, 902-04 (7th Cir. 2007).

But when they want to hold that sexual harassment is actionable discrimination, or that it warrants punitive damages, they claim it is “intentional.” For example, a court claimed in Bundy v. Jackson, 641 F.2d 934, 945 (D.C. Cir. 1981), that sexual harassment must be actionable under Title VII because it “represents an intentional assault on an individual’s innermost privacy.”

Similarly, when courts want to hold that a harassment judgment cannot be discharged in bankruptcy, they wrongly claim it is inherently “willful and malicious” on the part of both the “harasser” and the harasser’s employer. For example, In re Jones, 300 B.R. 133, 140 (1st Cir. B.A.P. 2003), claimed that “although there is no malice requirement in the sexual harassment statute, malice is inherent in finding” an employer liable for sexual harassment.

The truth of the matter is that intent is a requirement for a harassment claim, but not willfulness or malice. It is both necessary, and sufficient, that the accused employee treated the plaintiff differently based on her sex.

Discriminatory intent is required to recover damages for sexual harassment, not just the existence of an “offensive work environment.” 42 U.S.C. 1981a only permits damages in cases of “intentional discrimination,” not “disparate impact.” The Supreme Court characterized sexual harassment as “intentional” in Burlington Industries v. Ellerth, 524 U.S. 742, 756 (1998). And in its decision in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the Supreme Court noted that discriminatory intent is key, since there is no liability unless “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed,” and the mere fact that a man addresses words with “sexual connotations” to a woman does not automatically make them sexually harassing.

But willfulness or malice is not needed to show discriminatory intent, only gender-based treatment by the “harasser.” The Supreme Court made that clear in UAW v. Johnson Controls, 499 U.S. 187 (1991), which rejected the argument that a laudable motive for excluding women from certain jobs—to protect their fetuses—prevented the employer from having a discriminatory intent. All that mattered was that women were being treated differently, not why. So an employer who thinks he is God’s gift to women is properly deemed liable for harassment for subjecting his female employees to unwelcome advances that make their lives miserable, even if he deludedly thinks they enjoy his attentions.

But an employee who engages in sexual or vulgar discussions in the workplace should not be held liable simply because female employees overhear them and claim to be disproportionately offended by them. Some judges seem to grasp this rule, and do not allow sexual harassment claims to be brought just because the plaintiff was offended by sexual or vulgar speech. See, e.g., Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006); Scusa v. Nestle U.S.A., Inc., 181 F.3d 958 (8th Cir. 1998); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000); Duncan v. Denver, 397 F.3d 1300 (10th Cir. 2005); Butler v. Ysleta Independent School District, 161 F.3d 263, 270-71 (5th Cir. 1998); Pasqua v. Metropolitan Life Ins., 101 F.3d 514, 517 (7th Cir. 1996); Gallant v. Board. of Trustees, 997 F. Supp. 1231, 1232, 1234-35 (N.D. Cal. 1998).

As one appeals court conceded, “Title VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex. Because a claim of sexual harassment under Title VII is a claim of disparate treatment, in order to prevail a plaintiff must show that similarly situated persons not of her sex were treated differently and better.” See Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007).

Getting rid of any requirement of discriminatory intent, as some courts have done, raises serious First Amendment problems. As UCLA Law Professor Eugene Volokh notes, harassment claims are often based on speech, and treating speech as “harassment” simply because speech is overheard by the plaintiff, even if it was not aimed at her based on her sex, permits a plaintiff (and the threat of liability) to chill a vast array of speech by everyone else in the workplace. It is hard to argue that banning such speech is “narrowly tailored” to eradicating discrimination (as the First Amendment requires, at a minimum), especially when the speech does not even amount to “discrimination” in the ordinary sense of the term, simply because the plaintiff individually finds it offensive or hostile.

Nor can awarding damages for speech that is not aimed at the plaintiff based on her sex be justified under a “disparate impact” theory, which focuses on the consequences of conduct rather than discriminatory intent. 42 U.S.C. 1981a does not authorize damages based on “disparate impact,” but rather requires proof of “intentional discrimination.” Moreover, disparate impact claims typically require proof that an employer practice systematically excludes female or minority employees, and can’t be based on the impact on just one employee. See Coe v. Yellow Freight, 646 F.2d 444 (10th Cir. 1981). The typical sexual harassment case involves just a single plaintiff, who often seeks damages even if other employees of the same gender are perfectly happy with their workplace. (For example, in Dernovich v. Great Falls, the plaintiff sued over sexual jokes that her male and female co-workers told each other). In such cases, there simply is no “disparate impact” on the plaintiff’s gender.

Moreover, assuming that sexual speech has a “disparate impact” on female employees—as many sexual harassment rulings do—raises serious equal-protection problems, since it rests on a gender stereotype. In striking down a statute banning “obscene, profane, indecent, vulgar, or suggestive” communications to women, a court observed that laws “based on ‘old notions’ such as a belief that females should be afforded special protection from ‘rough talk’ because of their perceived ‘special sensitivities’ can no longer withstand equal protection scrutiny..” See In re Joseph T., 430 S.E.2d 523, 524 (S.C. 1993).