To prove that a hostile environment existed, plaintiff must show that: 1) he was subjected to verbal or physical conduct of a racial (sexual) nature, 2) this conduct was unwelcome, and 3) the conduct was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir.1991). To establish a hostile work environment harassment case under state law, an employee must prove the following elements: (1) the harassment was unwelcome; (2) the harassment was because of sex; (3) the harassment affected the terms or conditions of employment; and (4) the harassment is imputed to the employer. Glasgow v. Georgia-Pacific Corp. , 103 Wash.2d 401, 406-07, 693 P.2d 708 (1985). This same test applies to racial discrimination. Fisher v. Tacoma School Dist. No. 10, 53 Wn. App. 591, 595 769 P.2d 318 (1989). The working environment must both subjectively and objectively be perceived as abusive. Harris v. Forklift Sys., Inc. , __ U.S. ___, ___, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993).
The Ninth Circuit has ruled that whether the workplace is objectively
hostile is determined from the perspective of a reasonable person with the
same fundamental characteristics. Ellison, 924 F.2d at 879; Fuller
, 47 F.3rd at 1527; Nichols v. Frank, 42 F.3rd 503 (9th Cir. Nov.
29, 1994)(objective standard considers standpoint of reasonable person with
accuser's defining traits, including race, sex, age disability, and sexual
orientation). Hostility must be measured based on the totality of the circumstances.
Harris, ___ U.S. at ___, 114 S.Ct. at 371. "[T]he required showing
of severity or seriousness of the harassing conduct varies inversely with
the pervasiveness or frequency of the conduct." Ellison, supra
at 878. Although a single act may be insufficient, two occasions where
a noose was ground hug over an employee's work station satisfied the test.
Id. Although plaintiff suffered extreme psychological harm in this
case, psychological harm is not required. Harris, 114 S.Ct. at 371.
1. Knowledge of employer.
Even if a hostile working environment exists, an employer is only liable for failing to remedy harassment of which it knows or should know. Ellison, 924 F.2d at 881. Knowledge can be either constructive or actual. To show constructive knowledge, plaintiff may succeed by showing "such a pervasiveness of sexual harassment at the workplace as to create an inference of the employer's knowledge or constructive knowledge of it . . . ." Fisher v. Tacoma School Dist. No. 10, 53 Wn. App. 591, 596, 769 P.2d 318 (1989).
2. Prompt remedial action - Must deter both the harasser and future potential harassers. If the remedial action is inadequate the defendant is liable.
An employer is liable for harassment when the employer has knowledge
of the harassing behavior and fails to take prompt remedial action reasonably
calculated to end the harassment and to prevent its future occurrence.
Ellison v. Brady, 924 F.2d 872, 881-82 (9th Cir. 1991). Whether remedial
action satisfies the requirement of the law is not determined upon whether
the harassment stops. Fuller, supra at 1528-29. "The fact that harassment
stops is only a test for measuring the efficacy of a remedy, not a way of
excusing the obligation to remedy." Id. at 1528.
Part of the employer's duty involves disciplining the harasser and demonstrating
to other workers that racial harassment will not be tolerated. Ellison
, at 882. The Ellison Court held that in some cases the mere presence
of the harasser would create a hostile working environment. Employers have
a duty to express strong and immediate disapproval of harassment. Ellison
, 924 F.2d at 881 (quoting EEOC guidelines); Intlekofer, 973 F.2d
at 780 n. 9 (a victim of sexual harassment should not have to work in a less
desirable location as a result of the employer's remedial plan); Ellison
, 924 F.2d at 882 (same).
The court in Ellison determined the standard for the reasonableness
of the defendant's remedial action:
In essence, then, we think that the reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in harassment. In evaluating the adequacy of the remedy, the court may also take into account the remedy's ability to persuade potential harassers from unlawful conduct.Ellison, at 1528. Remedies should be "assessed proportionately to the seriousness of the offense." Id., supra at 882. Once an employer knows or should know of harassment, a remedial obligation kicks in. Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994)(when employee is sexually harassed, the "only question is whether [the employer] is relieved of liability for [the harasser's] actions because it took sufficient disciplinary and remedial action in response to [the employee's] complaints."), cert. denied, 115 S.Ct. 733 (1995); Hacienda Hotel, 881 F.2d at 1516 (holding employer liable for failure to take "prompt remedial action" once it knew of allegations). The Fuller court made it explicitly clear that even if through ineffective action or no action at all the harassment stops, that will not relieve the defendant of liability. Fuller supra at 1529. It is the existence of past harassment, every bit as much as the risk of future harassment, that the statute condemns. Id. "Employers have a duty to 'express strong disapproval' of sexual harassment, and to 'develop appropriate sanctions.'" Ellison, 924 F.2d at 881 (quoting 29 C.F.R. Section 1604.11(f))