Convergence of Federal and Washington Harassment Law

A. New federal standard for harassment liability.

    In Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 118 S.Ct. 2275, 141 L.Ed. 2d 662 (1998) the Supreme Court set forth a new standard of employer liability for hostile environment harassment caused by a supervisor.(1) In such cases the employer is vicariously liable for the harassment of the supervisor. In the absence of tangible employment action, the Court created a two prong affirmative defense; that the employer exercised reasonable care and that the employee failed to complain:

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, see fed. Rule Civ. Proc. 8(c). That 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 unreasonable failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with a 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 any unreasonable failure to use any complaint procedure provide by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense.
Burlington Industries, 118 S.Ct. at 2270; Faragher, 118 S.Ct. at 2292-93.

    Both Supreme Court cases are limited to cases seeking employer liability for conduct by a supervisor. In the case of harassment by co-workers, preexisting standards continue to apply; there is no affirmative defense. The employer is liable if there exited a hostile work environment; the employer either knew or should have known; and failed to take prompt remedial action. Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991). Constructive knowledge is shown where the company knew or should have known of the harassment. Id.

    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. Wright-Simmons v. City of Oklahoma City, 1998 WL 614414, *7 (10th Cir. Okla.).See also Cadena v. The Pacesetter Corp., 1998 WL 596326, *9 (D.Kan.)("our reading of Faragher and BurlingtonIndustries suggests that the negligence theory continues to be viable").

    1. Constructive discharge is tangible employment action.

    As stated above, the affirmative defense does not apply where the harassment resulted in "tangible employment action" by the defendant. Numerous District Courts have held or at least assumed to that constructive discharge is a tangible employment action. See Delazaro v. Lehigh University, 1999 WL 54566 *3 (E.D. Pa.); Duran v. Flagstar Corp., 17 F.Supp. 3d 1195, 1202-03 (D. Colo. 1988); Jones v. USA Petroleum Corp., 20 F.Supp. 1379, 1383 (S.D. Ga. 1998); Maddin v. GTE of Florida, Inc., 33 F.Supp. 1027, 1032 (M.D. Fla. 1999); Patterson v. Dek-Cap, Inc., 29 F.Supp. 1248, 1253 (D. Kan. 1998); Suber v. Pitney Bowes, Inc. 1999 WL 102815 *4 (S.D.N.Y.). In the courts of appeals, the only judge to address the issue has agreed. Durham Life Ins. Co. v. Evans, 166 F.3d 139, 149 n.5 (3d 1999)(Judge Garth).

    In the case at bar, Plaintiff claims that he was constructively discharged. Such a finding would obviate the potential application of the affirmative defense.

B. Washington law standard for liability - no affirmative defense - new federal standards not adopted.

    Washington state discrimination law does not mirror federal law. Although much of state and federal law is similar, significant differences remain. See Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 361, 753 P.2d 517 (1988)("While these federal cases are a source of guidance, we bear in mind that they are not binding and that we are free to adopt those theories and rationale which best further the purposes and mandates of our state statute"). For example, the Washington State Supreme Court recently decided that Plaintiff did not have to prove constructive discharge in order to recover back pay. Martini v. Boeing Company, 137 Wn.2d 357, 971 P.2d 45 (1999). This is inconsistent with federal law which requires a finding of constructive discharge for those employees who quit the jobs. More significantly, federal law provides for an affirmative defense in mixed motive type cases. Tarin v. County of Los Angeles, 123 F.3d 1259, 1266 (9th Cir. 1997)(" When a plaintiff proves that a protected characteristic was a motivating factor in an adverse employment decision, the burden shifts to the employer to prove that it would have made the same decision in the absence of any illegal animus"). Washington law has specifically rejected that affirmative defense. Mackay v. Acorn Custom Cabinetry, Inc., 127 Wash.2d 302, 898 P.2d 284 (1995)(Justice Madsen dissenting because of the majority's failure to recognize affirmative defense).

    Washington Courts have not adopted the standards of Ellerth and Faragher. Under Washington law, there is no affirmative defense to a claim under RCW 49.60. Plaintiff establishes retaliation by proving 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 knowledge 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). Knowledge can be either constructive or imputed.

    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). This is the same standard as federal law. Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991). State law and federal law sharply differ as to imputed knowledge.

    To show imputed knowledge under federal law, the Ellerth and Faraghar standards apply as to harassment by supervisors or above. Under state law, however, harassment by a manager, as opposed to a supervisor, is imputed directly to the employer. Glasgow v. Georgia-Pacific Corp., 103 Wash.2d 401, 407, 693 P.2d 708 (1985)(knowledge of harassment is imputed to the defendant "where an owner, manager, partner or corporate officer personally participates in the harassment"). There is no affirmative defense under state law.

C. A racially hostile environment existed.

    To prove that a racially hostile environment existed, Plaintiff must show that: 1) he was subjected to verbal or physical conduct of a racial 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). 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).

D. Notice to the employer of a hostile environment.

    The employer's knowledge of a hostile environment can be either actual, constructive or imputed. Knowledge is actual where the employer complains directly to managerial authority. Knowledge is constructive where the employer knew or should have known of the hostile environment. Knowledge is imputed where an individual with knowledge possesses sufficient managerial responsibilities; typically hiring and firing authority.

    1. Constructive Knowledge under federal law.

    The Supreme Court decisions only apply to efforts to establish vicarious employer liability (without knowledge) for supervisor harassment. Concerning harassment by co-workers, a simple negligence standard applies. Even if a hostile working environment is proven to exist, an employer is only liable for failing to remedy harassment of which it knows or should known. Ellison, 924 F.2d at 881 (emphasis added). (2) To show constructive knowledge, plaintiff may succeed by showing "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...." Fisher v. Tacoma School Dist. No. 10, 53 Wn.App. 591, 596, 769 P.2d 318 (1989). Woods v. Graphic Communications, 925 F.2d 1195, 1202 (9th Cir. 1991)("If no complaint has been lodged, constructive knowledge may be imputed to the employer when harassment is pervasive")(citing Fisher). "Lack of notice does not insulate the employer from liability, especially when, as in Meritor and here, the harassing employee was also the official through whom a complaint would otherwise have been lodged." Woods, supra. See also E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1516 (9th Cir. 1989) (constructive knowledge where the supervisor with hiring and firing authority had actual knowledge).

    2.     Imputed Knowledge under federal law.

    In Faragher, the Supreme Court explicitly refrained from deciding at what level of supervisory responsibility knowledge of harassment is imputed to the employer. Id. at 63-64. Federal law imputes such knowledge where the harasser possesses sufficient managerial responsibilities. Notice to a supervisor of harassment was notice to the company where sexual harassment policy specifically directed employees to report harassment to their supervisors. Williamson v. City of Houston, 148 F.3d 462, 466 (5th Cir. 1998). (3) In Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th Cir. 1999) the court held that Ellerth/Faragher analysis applied not only to supervisory participation in sexual harassment but also to cases where a supervisor's inaction with respect to a hostile work environment created by a co-worker facilitated, prolonged, or otherwise failed to arrest the harassment if the supervisor knew or should have known of it.

    In the case at bar the defendant's employment policies directs employees to report harassment to the supervisor. Mr. Stewart's actual knowledge of the harassment and/or his failure to take any action to stop it results in imputed liability to the defendant.

    The Fourth Circuit has found employer liability where the harasser served in a supervisory position in which he exercised "significant control over the plaintiff's hiring, firing or conditions of employment." Paroline v. Unisys Corp., 879 F.2d 100, 104, 106-07 (4th Cir. 1989), vacated in part, 900 F.2d 29 (4th Cir. 1990). The Sixth Circuit has ruled that the Plaintiff must establish that the supervisor's harassment was within the scope of his employment. Kauffman v. Allied Signal, 970 F.2d 178, 184 (6th Cir. 1992)(a relevant factor in determining whether a harasser was acting within the scope of employment is whether the supervisor had "significant input" into personnel decisions).

    In the case at bar, Mr. Stewart had hiring and firing authority and had significant input into personnel decisions. In addition, the defendant's own policies recognized supervisors as individuals to whom complaints concerning harassment should be made.

    3. Imputed knowledge under state law.

    Under Washington law, knowledge of harassment is imputed to the defendant "where an owner, manager, partner or corporate officer personally participates in the harassment." Glasgow v. Georgia-Pacific Corp., 103 Wash.2d 401, 407, 693 P.2d 708 (1985). Although the defendant now claims that they were "supervisors," both Stewart and Fosdick have been identified in discovery as "manager personnel." At the very least there exists a question of fact about whether they were managers or supervisors.

    The better analysis ignores the employer's designated job title.(4) The nature of the supervisory responsibility controls, regardless of job title. In that regard, both Stewart and Fosdick had significant managerial responsibilities; both had significant hiring and firing responsibilities and participated in preparing employment evaluations for subordinate employees, including Plaintiff. Their knowledge and participation of the harassment is therefore imputed to the employer.

E. Affirmative Defense.

    As stated above, the affirmative defense created by Ellerth and Faraghar only apply to cases where the defendant neither knew or should have known of the hostile environment and to cases which do not culminate in tangible employment action. Where the defendant neither knew or should have known, and the harasser was a supervisor, the employer may escape liability through a two prong affirmative defense.

      1. Reasonable care to prevent and correct promptly any sexually harassing behavior.

    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....". Faragher, at 59. The affirmative defense requires that the employer have employment policies and practices sufficient to prevent and remedy harassment. In that regard, the defendant's personnel policies for both prevention and correction must be "suitable to the employment circumstances." Faragher, supra at 60. This judgment must be made based upon the "totality of the circumstances." The circumstances in this case are that Plaintiff was the only African American working in a production facility with over 100 employees.

    The existence of employment policies, in and of itself, is inadequate for the defendant to succeed on its affirmative defense. 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"). Reasonable care requires effective communication of policies and training. The employer has the burden of proof. The fact that Plaintiff received a copy of all policies and signed a form acknowledging receipt is hardly dispositive of effective communication. It is uncontested that neither Plaintiff or Fosdick had ever read the policy nor was the policy on harassment ever discussed.

    It is likewise uncontested that Mr. Stewart was Plaintiff's immediate supervisor, and that he had knowledge of the use of racial slurs in Plaintiff's presence. "[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." Wilson v. Tulsa Junior College, 164 F.3d 534, 541-42 (10th Cir. 1998).

    2. Failure 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, WL 514683, *9 (D. Nev.). It is clear, however, that a generalized fear of retaliation, in and of itself, is unreasonable. 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").
F. Constructive Discharge

    As stated above, Plaintiff quit his employment. In order to recover back pay or emotional distress damages caused by the loss of employment (as opposed to the harassment), he must prove constructive discharge to succeed under federal law. Under state law however, Plaintiff no longer must prove constructive discharge, only that his unemployment was proximately caused by the harassment.

    1. Constructive discharge - Federal law.

    "A constructive discharge occurs when, looking at the totality of circumstances, 'a reasonable person in [the employee's] position would have felt that he was forced to quit because of intolerable and discriminatory working conditions."' Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987). "This test establishes an objective standard; the plaintiff need not show that the employer subjectively intended to force the employee to resign. Id.; Satterwhite v. Smith, 744 F.2d 1380, 1381 (9th Cir.1984); Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (9th Cir.1990) (constructive discharge occurred where unfounded negative evaluations led to denial of merit pay on two separate occasions, and where employee's attempts to challenge loss of pay were rebuffed).

    Quite simply , where Plaintiff was subjected to verbal or physical conduct of a racial nature, which was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, a reasonable person would have felt that he was forced to quit because of intolerable and discriminatory working conditions. See Perry, Sarah: Enough is Enough: Per Se Constructive Discharge for Victims of Sexually Hostile Work Environment Under Title VII, 70 Washington Law Review 541 (1995).

    In the alternative, Plaintiff suffered racial slurs, jokes and comments repeatedly for approximately 8 months. The racial conduct occurred on a daily basis. It was so pervasive that the majority of employees at the defendant's plant used racial comments or slurs. Although the defendant argues that Plaintiff quit for an unrelated reason, a question of fact clearly exists concerning whether Plaintiff was constructively discharged. Whether working conditions were so intolerable and discriminatory as to justify a reasonable employee's decision to resign is normally a factual question for the jury. Sanchez v. City of Santa Ana, supra; Watson, supra.

    2. Constructive Discharge - state law; Martini v. Boeing.

    In Martini v. Boeing Company, 137 Wn.2d 357, 971 P.2d 45 (1999), the Court ruled that claims brought under RCW 49.60 do not require that Plaintiff prove constructive discharge so long as damages are proximately caused by discrimination. Specifically, the Court ruled as follows:

    It is significant that there is nothing in the plain language of the statute which conditions an award of damages for front or back pay for a violation of RCW 49.60.180(3) upon a separate and successful claim for wrongful discharge under RCW 49.60.180(2). The statute does not in any way limit the type of compensation that can be claimed for discrimination violating RCW 49.60.180(3), but the usual rules which govern the elements of damage for which compensation may be awarded apply. Cf. 6A Washington Pattern Jury Instructions: Civil 330.81, at 256 (1997) (WPI) (including back pay and front pay in jury instruction addressing compensation for employment discrimination, but stating that jury's verdict for the plaintiff must include "such damages as you find were caused by the acts of the defendants"); CP at 1488 (jury instruction following WPI 330.81). In the present case, the jury was instructed that only lost pay which was proximately caused by an unlawful act of discrimination could be awarded (CP at 1494) and that Martini had a duty to mitigate his damages. CP at 1493. The determinations of both proximate cause and mitigation are factual matters for the jury, operating to limit front and back pay awards in cases where there has been discrimination but no finding of constructive discharge.  Id. at _____. "This claim [for damages] could be asserted regardless of whether or not the employee had been discharged or constructively discharged in violation of RCW 49.60.180(2)" Id. at 50. In order to recover back pay and/or front pay, Plaintiff need only prove proximate cause." Id. at 51.

1. The Court intended to apply these same agency principles to all vicarious liability inquiries under Title VII for acts by supervisors, including racial discrimination. See Faragher, -- U.S. at ---- n. 1, 118 S.Ct. at 2283 n. 1 ("Although racial and sexual harassment will often take different forms, and standards [may] not be entirely interchangeable, we think there is good sense in seeking generally to harmonize the standards of what amounts to actionable harassment.");Deffenbaugh-Williams v. Wal Mart, 1998 WL 654810, *12 (5th Cir.(Tex.)("Therefore, even though the case at hand involves a racially-discriminatory- discharge claim, rather than one for sexual-harassment-hostile-work- environment, we find the standard enunciated in Faragher and Burlington controlling"); Wright-Simmons v. City of Oklahoma City, 1998 WL 614414, *7 (10th Cir.(Okla.)(" Although Burlington and Faragher involved sexual harassment, the principles established in those cases apply with equal force to this case of racial harassment for a number of reasons"); Allen v. Michigan Dept. of corrections 165 F.3d 405, 411 (6th cir. 1999).

2. In determining the existence of hostile work environment, the court must consider not only the effect the discriminatory conduct actually had on the Plaintiff, but also the impact it likely would have had on a reasonable employee in the Plaintiff's position. Harris v. Forklift Systems, Inc., 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1995). "Evidence of a general work atmosphere, in addition to evidence of specific hostility directed at the plaintiff, may be considered in evaluating the claim." Daemi v. Church's Fried Chicken, Inc., 931 F.2d 1379, 1386 (10th Cir. 1991).

3. See also Distasio v. Perkin Elmer Corporation, 1998 WL 640280, *19 (2nd Cir.Conn.)("An official's knowledge will be imputed to an employer when: (A) the official is at a sufficiently high level in the company's management hierarchy to qualify as a proxy for the company; or (B) the official is charged with a duty to act on the knowledge and stop the harassment; or (C) the official is charged with a duty to inform the company of the harassment").

4. By analogy, claims under the Equal Pay Act, 29 U.S.C. §206(d)(1), are determined by the nature of job functions. Formal job titles are not dispositive of whether claimant were doing "substantially equal" jobs for less pay. Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223 (1974); Spaulding v. Univ. of Wash., 740 F.2d 686, 697 (9th Cir. 1984); EEOC v. Maricopa County Comm. College, 736 F.2d 510, 513 (9th Cir. 1984). A nominal designation of an employee as a supervisor will not protect an employer from an Equal Pay Act claim. Hair v. J.C Penney Co., 688 F.2d 370, 373-74 (5th Cir. 1982). Generally, courts look behind job classifications to the substance of the work performed. Morgado v. Birmingham Jefferson County Civil Defense Corps., 706 F.2d 1184, 1188-89 (11th Cir. 1983), cert. denied, 464 U.S. 1045 (1984).