Imputed Liability for Illegal Harassment: Federal and State Perspectives

By Jeffrey Needle

 
I. Introduction.

    Since the federal civil rights statutes are all enforceable in state courts, it can be reasonably anticipated that Washington Appellate Courts will be called upon to interpret these statutes applying federal standards. Although state courts sometimes look to federal jurisprudence as a source of guidance for the interpretation of state law, many differences exist in light of the unique language and purposes of the state statute. Federal standards for imputing liability to an employer have not been adopted by the State Supreme Court, and the Court appears to have implicitly rejected them. Nevertheless, decisions in the Court of Appeals have created considerable ambiguity concerning the role of federal law and under what circumstances illegal harassment is imputed to the employer.

    State law imputes liability to the employer "[w]here an owner, manager, partner or corporate officer personally participates in the harassment." Notwithstanding a contrary view by Courts of Appeals, the Supreme Court has defined "manager" to mean "those who have been given by the employer the authority and power to affect the hours, wages, and working conditions of the employer's workers." Where the harasser is a supervisor or co-worker the employer will be liable where the employer knew or should have known of the harassing behavior and failed to take prompt remedial action.

    Under federal law, the employer is vicariously liable for harassment by a "supervisor" or those with immediate or successively higher authority over the employee where the harassment culminates in "tangible employment action." Where harassment does not culminate in tangible employment action, federal law creates a two prong affirmative defense to employer liability. To avoid liability, the employer has the burden of proving: (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 preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Under both federal and state law, the employer is liable where it knew or should have known of the illegal harassment and failed to take prompt remedial action.

II. Federal Law

    In Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the Court expanded the scope of employer liability and acknowledged that "[a]n 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." Faragher, supra at 807. Where there exists no "tangible employment action," however, the Court created an affirmative defense.

    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, see Fed. Rule. Civ. Proc. 8(c). 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 preventive or corrective opportunities provided by the employer or to avoid harm otherwise. . . . No affirmative defense is available however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.  Faragher, 524 U.S. at 806, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. See also Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 877 (9th Cir. 2001) ("However, when no 'tangible employment action' has been taken, an employer may raise 'an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence'").

A. What is a Tangible Employment Action?

    The Court in Ellerth and Faragher declined to specify the exact contours of tangible employment action. Generally, however, tangible employment action requires "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." See Ellerth, 524 U.S. at 761, 118 S.Ct. 2257.

Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act. The decision is most cases is documented in official company records, and may be subject to review by higher level supervisors. The supervisor often must obtain the imprimatur of the enterprise and use its internal processes.

Id. at 162. Further, a "tangible employment action in most cases inflicts direct economic harm." Id. at 762, 118 S.Ct. 2257. As an example, the Court in Ellerth made reference to Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990), which noted that even though an accused supervisor had not personally fired the plaintiff, the employer was still liable because the committee which did the firing functioned as the supervisor's "cat's-paw." Ellerth, 118 S.Ct. at 2269. See also Murray v. Chi. Transit Auth., 252 F.3d 880, 887 (7th Cir. 2001)(refusal to approve travel plan to conference after rejected dinner invitation does not constitute a tangible employment action); Durham Life Insurance Co. v. Evans, 166 F.3d 139, 153 (3d Cir. 1999) (economic harm is not the "sine qua non" of a tangible employment action); Morris v. Oldham County Fiscal Court, 201 F.3d 784, ___ (6th Cir. 2000)("At a minimum, the plaintiff must point to a tangible employment action that she alleges she suffered, or is in jeopardy of suffering, because of the downgraded evaluation"); Molnar v. Booth, 229 F.3d 593, 600 (7th Cir. 2000) (holding that jury could find that taking art supplies away from plaintiff, who was interning as a junior high school art teacher, was a tangible employment action); Fyfe v. City of Fort Wayne, No. 00-1396, 2001 WL 171173, *4 (7th Cir. Feb. 22, 2001) (denial for reimbursement for travel and lodging expenses at seminar not an adverse employment action).

    There exists a split in the circuits about whether constructive discharge constitutes tangible employment action. Compare Caridad v. Metro North Commuter R.R., 191 F.3d 283, 294 (2d Cir. 1999) (stating "constructive discharge does not constitute a`tangible employment action' as that term is used in Ellerth and Faragher") with Durham Life Ins. Co. v. Evans, 166 F.3d 139, 153 (3d Cir. 1999) ("[u]nder [plaintiff]'s theory, any substantial adverse action . . . would not be a tangible adverse employment action if it led the affected employee to quit before the demotion took effect. This is contrary to Title VII doctrine, which recognizes a constructive discharge under such circumstances") and Cherry v. Menard Inc., 101 F.Supp.2d 1160, 1171 (W.D. Iowa 2000) ("This court, however, does not agree with the decisions reached in Caridad ").

B. Affirmative Defenses.

    In almost all discrimination cases where the defendant brings a motion for summary judgment, the Plaintiff has the burden of proof and persuasion on all issues. Where dismissal, however, turns upon an affirmative defense, the defendant has the burden of proof. In such cases "[t]he issue is not whether [defendant] had produced sufficient evidence to establish the defense but whether it was entitled to judgment as a matter of law, i.e., whether no reasonable jury could fail to find that the defense had been established." Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 746 (9th Cir. 1997). Thus, the motion must be resolved in Plaintiff's favor unless the defendant can show that, resolving all facts in favor of Plaintiff, no reasonable jury could reject its affirmative defense. Id.

1. Reasonable Care to Prevent and Correct Promptly Sexual Harassment.

    The first prong of the affirmative defense requires that the defendant prove that "the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior....". Ellerth , at 765. In that regard, the defendant's personnel policies for both prevention and correction must be "suitable to the employment circumstances." Ellerth, supra at 745. This judgment must be made based upon the "totality of the circumstances."

    The existence of employment policies, in and of itself, is inadequate for the defendant to succeed on its affirmative defense. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 72 (1986) ("Finally, we reject petitioner's view that the mere existence of a grievance procedure and a policy against discrimination, coupled with respondent's failure to invoke that procedure, must insulate petitioner from liability"); E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1516 (9th Cir. 1989)("this court has held that a Title VII plaintiff need not exhaust her employer's internal remedies"); Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 118 (3d Cir. 1999)("Ellerth and Faragher do not, as the defendants seem to assume, focus mechanically on the formal existence of a sexual harassment policy, allowing an absolute defense to a hostile work environment claim whenever the employer can point to an anti-harassment policy of some sort"); Lissau v. Southern Food Serv., 159 F.3d 177, 183 (4th Cir.1998) (recognizing that small employers may show that they exercised reasonable care to prevent and correct sexual harassment through more informal complaint mechanisms);Cf Passantino v. Johnson & Johnson, 2000 WL 276017 at *18 (9th Cir.)(the existence of an anti-harassment policy insufficient to defeat punitive damages).

    If an employer could avoid liability simply by adopting a formal policy against discrimination or harassment, every employer in the country would be able to avoid liability regardless of how otherwise culpable. The content of the employer's anti-harassment policy, communication, training and implementation of those policies are the pivotal issues. See Frederick v. Sprint/United Management Company, 246 F.3d 1305, ___ (11th Cir. 2001)("in order to establish that it took reasonable steps to prevent harassment, Sprint was required to show that its sexual harassment policy was effectively published, that it contained reasonable complaint procedures, and that it contained no other fatal defect"). In most corporations, the anti-harassment policy is contained in a much larger employment manual that is virtually never read by ordinary employees. Although employees may be required to acknowledge in writing that they have received a copy of the manual, this acknowledgment hardly constitutes effective communication or implementation of an anti-harassment policy. Expert personnel witnesses are available to rebut or support the sufficiency of both policies and training pursuant to those policies.

    Reasonable care to protect against harassment requires that managers or supervisors with knowledge of harassment report it to higher authority. Wilson v. Tulsa Junior College, 164 F.3d 534, 541-42 (10th Cir. 1998)("[A] procedure that does not require a supervisor who has knowledge of an incident of sexual harassment to report that information to those who are in a position to take action falls short of that which might absolve an employer of liability"); Hurley v. Atlantic City Police Dep't , supra ("liability established because 'a supervisor with the duty to stop harassment, was aware of much of the harassment, even that which he did not himself inflict'"); Mockler v. Multnomah County , 140 F.3d 808, 812 (9th Cir. 1998)("when 'the employer's supervisory personnel manifest[ ] unmistakable acquiescence in or approval of the harassment, the burden on the employer seeking to avoid liability is especially heavy'")( citing Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983).

2. Unreasonably Failed to Complain.

    The second prong of the affirmative defense requires the employer to prove "that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise." Faraghar, supra. If the harassment was common knowledge among management employees, and no corrective action was taken, the failure to complain might be considered reasonable:

[T]he defendants will have to show that the plaintiffs unreasonably failed to report Stangle's behavior pursuant to the sexual harassment policy, and not merely that they failed to report it . . . . Since the plaintiffs have argued that they had legitimate reasons for not reporting Stangle's behavior, including a belief that his supervisors already knew about it, and had done nothing, it will be up to the trier of fact to determine whether or not the plaintiffs did act reasonable.

Vandermeer v. Douglas County, 15 F. Supp. 2d 970, __ (D. Nev. 1998). See also Greene v. Dalton, 164 F.3d 671, 674-75 (D.C.Cir.1999) (explaining that the district court invaded the province of the jury in awarding summary judgment to the defendant when the defendant had not demonstrated that the employee's delay in filing a complaint was unreasonable). It is clear, however, that a generalized fear of retaliation, in and of itself, is an unreasonable basis for a failure to complain. See Fierro v. Saks Fifth Ave., 13 F.Supp.2d 481, 492 (S.D. N.Y. 1998)("As a matter of law, this court holds that such generalized fears can never constitute reasonable grounds for an employee's failure to complain to his or her employer"); Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 266 (4th Cir. 2001) ("A generalized fear of retaliation does not excuse a failure to report sexual harassment"); Madray v. Publix Super Mkts., Inc., 30 F. Supp. 2d 1371, 1375 (S.D. Fla. 1998)("An employee's generalized fear of repercussions cannot form the basis for an employee's failure to complain to his or her employer"), aff'd 208 F.3d 1290 (11th Cir. 2000).

C. Harassment by Co-Workers.

    Simple negligence continues to be a viable alternative for imputing liability under either state or federal law. The employer is liable if there existed a hostile work environment; the employer either knew or should have known; and failed to take prompt remedial action. Considering the applicable standard of liability after Ellerth/Faragher, the Ninth Circuit ruled that the Defendant is liable where management knew or should have known. Swinton v. Potomac Corp., 270 F.3d 794, 803 (9 th Cir. 2001)("Even after the advent of the affirmative defense outlined in Ellerth and Faragher, the negligence standard 'still applies to sexual harassment by coworkers.'"); Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th Cir. 1999)("This rule [knew or should have known] still applies to sexual harassment by coworkers"). All other federal circuits to have addressed the issue agree with the Ninth Circuit. See Wright-Simmons v. City of Oklahoma City , 1998 WL 614414, *7 (10th Cir. Okla.)("The second basis for liability, not addressed in either Burlington or Faragher, is employer negligence. The employer may be held liable if it knew, or should have known, about the hostile work environment and failed to respond in an appropriate manner"); Cadena v. The Pacesetter Corp., 1998 WL 596326, *9 (D.Kan.)("our reading of Faragher and Burlington Industries suggests that the negligence theory continues to be viable"); Grozdanich v. Leisure Hills Health Center, Inc., 25 F. Supp. 2d 953, 970 (Minn. 1998)("Although neither of these Supreme Court decisions speaks directly to this issue, the presumably still-valid law of this Circuit holds that, if Parson and the Plaintiff were merely co-employees, Leisure Hills is liable only if it 'knew or should have known of the harassment and failed to take immediate and appropriate action'"). A finding that the employer should have known of the harassment and failed to take prompt remedial action forecloses a finding of reasonable care to prevent or correct harassment.

II. Washington State Law

    In Glasgow v. Georgia-Pacific Corp. , 103 Wn.2d 401, 407, 693 P.2d 708 (1985), the Court established four elements for proving an illegal harassment case: 1) the harassment was unwelcome, 2) the harassment was because of a [protected classification], 3) the harassment effected the terms and conditions of employment, and 4) the harassment is imputed to the employer. Id. at 406-407. In reference to imputing liability the court held:

Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof. To hold an employer responsible for the discriminatory work environment created by a plaintiff's supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action. This may be shown by proving (a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer's knowledge or constructive knowledge of it and (b) that the employer's remedial action was not of such nature as to have been reasonably calculated to end the harassment.

Id. at 407.

    There is no affirmative defense under state law and the existence of tangible employment action appears to be unnecessary. Under federal law, liability is imputed for acts of a "supervisor," while under state law liability is imputed for acts of a "manager." There has been considerable debate concerning the level of "managerial" authority necessary to impute liability to the employer under state law. The Courts of Appeals that have addressed the subject have come to very different conclusions concerning the role of federal law.

    In Francom v. Costco Wholesale Corp., 98 Wn.App. 845, 991 P.2d 1182 (2000), review denied, 141 Wn.2d 1017, the Plaintiff alleged, inter alia, that she was subjected to sexual harassment from the warehouse's front end manager. Although the manager was not Plaintiff's direct supervisor, she was required to work with him. Id. at 849. The Plaintiff alleged that under Glasgow liability was automatically imputed to the harasser because of his managerial status. In response, the Court explicitly declined to adopt the federal standards articulated in Faragher and Ellerth because the harasser was not Plaintiff's immediate manager. Id. at 853 fn4.

    Applying state law, the Court in Francom ruled that Glasgow "clearly distinguishes between, on one hand, the class of persons so closely connected to the corporate management that their actions automatically may be imputed to the employer and, on the other hand, the employee's supervisors and co-workers whose actions alone may not be imputed directly to the employer." Id. at 853-854. To determine whether the harasser qualified as a "manager" within the meaning of Glasgow, the Court first ruled that a simple title was not sufficient, and that analysis of duties and responsibilities was required. Id. at 854. Although the Court declined to adopt the holding of Ellerth and Faragher, it nevertheless looked to those cases for guidance and ruled that the harasser was only a mid-level manager and not sufficiently high ranking for liability to be imputed. Id. at 856. The Court in Francom apparently interpreted federal law to require that before liability can be imputed to the employer the harasser must be within the "high echelons of an employer's officers." A mid-level manager who supervises and hires others is not sufficient. Id. at 855-856. See also Washington v. Boeing Co., 105 Wn.App. 1, 12, 19 P.3d 1041 (2000)("liability cannot be automatically imputed to Boeing because the numerous managers who supervised Washington do not occupy sufficiently high level positions within Boeing to be considered its alter ego")(citing Francom).

    In Sangster v. Albertson's, Inc., 99 Wn.App. 156, 991 P.2d 674 (2000), the Plaintiff filed a sexual harassment suit against Albertson's, Inc., and the director of the store based on his alleged comments. The Plaintiff argued that the harasser was the store director in charge of all the department managers including Plaintiff, and that he was her immediate supervisor. Id. at 163-164. She further argued that under Glasgow, liability was automatically imputed to the employer. Id. In response, the Court agreed with Plaintiff. Id . at 166. Nevertheless, the Court ruled that Glasgow is not controlling. Id. at 167. Instead, the Court reviewed more recent developments under federal law, including Ellerth and Faragher, and remanded to determine whether the affirmative defense established by the federal standard applied. Id. In this case, the Court of Appeals overruled the Supreme Court's ruling in Glasgow.

    In Henningsen v. Worldcom, Inc., 102 Wn.App. 828, 9 P.3d 948 (2000), the Plaintiff alleged, inter alia , that she was sexually harassed by the District Sales Manager. As Plaintiff's supervisor, he evaluated Plaintiff's performance in her sales office administrator position, and had the authority to initiate discipline and termination proceedings. He also had the authority to grant her a promotion from sales office administrator to sales representative. Id. at 832. The employer argued that the Glasgow court's use of the term "manager" with the surrounding terms of "'owner," "partner" and "corporate officer" indicates that for there to be automatic liability, the manager would need to be at a corporate level akin to that of the business owner or an actual officer of the company. It further argued that the District Sales Manager lacked the level of managerial authority to impute liability for harassment within the meaning of Glasgow. Id. at 837. In response, the Court acknowledged the existence of authority that liability can be automatically imputed to an employer if the harassing employee has the authority to "independently hire and fire" employees, or significantly influence the decision-making process in personnel matters. Id. Citing Delahunty v. Cahoon, 66 Wn.App. 829, 836-37, 832 P.2d 1378 (1992) and Payne v. Children's Home Soc'y, 77 Wn.App. 507, 515-516, 892 P.2d 1102 (1995). However, the Court found that there exists no direct authority for the meaning of "manager" within the context of Glasgow, and all that could be determined from the Glasgow decision itself was that a manager was something greater than a supervisor. Id. at 837-38.

    Applying principles of agency, the Court in Henningsen ruled that "an employee's actual or apparent authority to make employment decisions--standing alone--is not sufficient to hold the employer automatically liable for the employee's sexually harassing conduct." Id. at 839. Rather, in order to hold the employer liable, principles of agency require that the harasser take some form of "tangible employment action" regardless of whether the harasser was a "supervisor" or a "manager." Id. at 842. Although the Court ruled that Glasgow did not control the appeal, it declined to adopt Ellerth and/or Faragher because the presence of tangible employment action would have rendered the employer ineligible for any affirmative defense. Id. at 843.

    It appears that the Court in Henningsen relied on neither Glasgow nor federal law, and independently determined that under state law liability could not be imputed to the employer unless there existed "tangible employment action" regardless of the label attached to the harasser.

    In Robel v. Roundup, ___Wn.2d ___, 59 P.3d 611 (2000), the Plaintiff brought a claim for, inter alia , a hostile work environment based upon her disability. This was a bench trial with the trial court entering a judgment in favor of Plaintiff based upon its findings of fact and conclusions of law. In a case of first impression, the Court held "the anti-discrimination statute supports a disability based hostile work environment claim." Id. at 615. The Court then extended the reasoning of Glasgow to disability claims, and acknowledged that it was controlling authority in reference to imputing liability to the employer. Id. at 616-617. The Court recognized that the uncontested Findings of Fact satisfied both options derived from Glasgow.

    The trial court found that "Fred Meyer, through the acts of its managers, participated, authorized, knew and/or should have known of the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996." CP at 1335 (Finding of Fact 38) (emphasis added); see also CP at 1336 (Finding of Fact 46) (stating that "Fred Meyer's management personnel improperly participated in and/or allowed the verbal and non-verbal harassment in the work setting"). The trial court clarified in its oral review of the findings that deli manager Potts and assistant deli manager Smith were management personnel for purposes of employer liability. Moreover, the court specifically found that the post-injury harassment was "imputed to Fred Meyer." Id. (Finding of Fact 39) (emphasis added). These uncontested findings of fact satisfy both options derived from Glasgow.

Id. at 618 (emphasis added). Within the context of Glasgow, the Court then defined the term "manager" as "those who have been given by the employer the authority and power to affect the hours, wages, and working conditions of the employer's workers." Id. at 618 fn5. This definition is clearly different than the definition recognized in Sangster, Francom or Henningsen. Although the Court did not explicitly address whether to adopt the federal standards, its continued reliance upon Glasgow is an implicit rejection.

III. Discussion

    In Ellerth, the Court considered general common law principles of agency law in interpreting Title VII, and noted that "we are bound by our holding in Meritor that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment." Id. at 763, 118 S.Ct. 2257 (citing Meritor, 477 U.S. at 72, 106 S.Ct. 2399). The Court concluded that "[w]hatever the exact contours of the aided in the agency relation standard, its requirements will always be met when a supervisor takes a tangible employment action against a subordinate." Id. at 762-63, 106 S.Ct. 2399. The Ellerth Court noted, however, that "[w]hether the agency relation aids in commission of supervisor harassment which does not culminate in a tangible employment action is less obvious." Id. at 763, 118 S.Ct. 2257. Further, the Court stated "we hesitate to render a definitive explanation of our understanding of the [aided in agency relation] standard in an area where other important considerations must affect our judgment." Id. In Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001), the Court may have helped expand upon the agency relation standard. In Swinton, the defendant argued that although the harassment was witnessed by a "supervisor," he was not part of "management," and thus his knowledge and inaction could not be imputed to the employer. Id. at 804. In response, the Court identified two categories of employees who qualify as management for these purposes.

    First, an employee is a member of management if a "supervisor[ ] possessing substantial authority and discretion to make decisions concerning the terms of the harasser's or harassee's employment," such as "authority to counsel, investigate, suspend, or fire the accused harasser, or to change the conditions of the harassee's employment." Citation Omitted. Second, a supervisor who lacks such authority is nonetheless classified as "management" if he "has an official or strong de facto duty to act as a conduit to management for complaints about work conditions."

Id. at 804-805.

    Federal Courts have considered what level of management involvement is sufficient to impute punitive damages to the employer. In that regard, it is clear that involvement by high level management personnel is not necessary. Applying agency principles, the Court in Kolstad v. American Dental Association, 119 S.Ct. 2118 (1999) explicitly ruled that in order to impute liability for punitive damages the employee "need not be the employer's 'top management' officers, or directors. . . " Id. at 2127. See also EEOC v. Wal-Mart, 187 F.3d 1241, 1247 (10th Cir. Aug. 23, 1999)("authority to 'hire, fire, discipline or promote, or at least to participate in or recommend such actions,' is an indicium of supervisory or managerial capacity" sufficient to impute punitive damages). If conduct by a high level manager is not necessary to impute liability for punitive damages to the employer, it's hard to imagine why high level managerial involvement would be necessary to impute simple liability.

    It is clear therefore that vicarious liability under federal law is determined by agency principles. It is further clear that applying agency principles the existence of tangible employment action necessarily involves an act by the employer resulting in vicarious liability. Contrary to the Court's ruling in Henningsen, however, agency principles do not limit vicarious liability to those circumstances where tangible employment action exists, although the exact contours of liability are less obvious. Certainly, under state law Glasgow recognizes no requirement of tangible employment action for imputing liability to the employer.

    Under state law, liability is imputed for the act of a manager as opposed to only a supervisor under federal law. While some decisions by the Courts of Appeals suggest that liability can be imputed only for harassing upper echelon managers, their reliance on federal law is misplaced. See Kolstad v. American Dental, supra. The Washington Supreme Court has ruled that upper echelon authority is not required, and to qualify as a "manager" all that is required is the "power to affect the hours, wages, and working conditions of the employer's workers." See Robel, supra.

    The affirmative defenses under federal law (applied when no tangible employment action exists) in part require the employer to prove that "that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior." This requirement effectively turns virtually every case into a personnel malpractice action, with the burden of proof on the employer to prove that it exercised reasonable care. In other jurisdictions where federal law is utilized more predominantly, a virtual cottage industry of personnel expert witnesses has been created, substantially multiplying the costs of litigation and the number of attorney hours needed to litigate cases.

IV. Conclusion

    Both state and federal claims are actionable in state courts so that a familiarity with both is required. Imputing liability under federal law is far more complicated, costly and time consuming than under state law. The State Supreme Court has implicitly rejected the adoption of federal law, and has clarified the meaning of the term "manager" for the purpose of imputing liability to the employer to effectively resolve the pre-existing ambiguity.