The U.S. Court of Appeals for the Eleventh Circuit Undercuts Sexual Harassment Victims' Rights:
By JOANNA GROSSMAN
|Tuesday, Apr. 03, 2007|
In its recent opinion in Baldwin v. Blue Cross, the Eleventh Circuit ended Susan Baldwin's attempt to seek legal redress for the sexual harassment she alleges that she suffered at the hands of her supervisor. But this decision is much more than just a blow to a single plaintiff in a single case.
The ruling is a veritable minefield for future plaintiffs. Moreover, from a broader perspective, the ruling exposes fundamental flaws in the doctrine of employer liability for sexual harassment that has been crafted by the Supreme Court. These flaws make it too easy for employers to avoid liability, and too difficult for employees who have experienced actionable discrimination to recover.
Employer Liability for Sexual Harassment: Some Nuts and Bolts
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex. Sexual harassment is a form of sex discrimination, long recognized as illegal under Title VII. For a sexual harassment victim to prevail in court, however, she must prove not only that she suffered harassment that was sufficiently severe or pervasive to be actionable, but also that there is some basis for holding the employer liable for the harassment.
The Supreme Court established rules governing supervisory sexual harassment in twin 1998 opinions, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth. In those cases, the Court ruled that employers are only strictly liable (that is, liable even in the absence of proof of fault) for supervisory harassment when it results in a tangible employment action taken against the victim such as a demotion, a cut in pay, or being fired. In such cases of "quid pro quo" harassment, the supervisor typically demands sexual favors and punishes the employee who refuses to provide them.
In cases in which the nature of the harassment alleged is "hostile environment," the Court made clear that the legal standard is very different. In these cases, the employer is automatically liable to begin with - but then has the opportunity to avoid liability or damages by proving an affirmative defense.
The affirmative defense requires a two-pronged showing. First, the employer must show it took reasonable care to prevent and correct harassment. Second, it must also show that the victim unreasonably failed to take advantage of corrective opportunities, such as internal grievance procedures, made available by the employer.
Let's now see how the two-pronged affirmative defense rules played out in Susan Baldwin's case.
The Hostile Environment Alleged by Susan Baldwin
Baldwin worked for Blue Cross in Huntsville, Alabama as a marketing representative. In November 2000, Scott Head became her boss when he was promoted to district manager. According to the facts as judged in the light most favorable to the plaintiff (the required stance for an appellate court reviewing a grant of summary judgment to the defendant), Head engaged in two types of conduct that Baldwin found unwelcome and offensive:
First, he used profanity regularly, and used sex-specific derogatory terms to refer to both employees and applicants. Male subordinates were "peckerwoods" and "cocksuckers"; female employees were "bitch" or "babe"; one female applicant was not hired, according to Head, because she was a "slut" and a "tramp." (He apparently reserved "fucking bitch" for his wife, when complaining about her at work.)
The second type of conduct about which Baldwin complained was more serious and targeted directly at her. On July 26, 2001, Head accompanied Baldwin and other marketing representatives to a banquet for Blue Cross managers in Birmingham. During the banquet speech, Head leaned over to Baldwin and invited her to dance, party, and spend the night in his hotel room in Birmingham, rather than driving home. "No one will ever know," he promised. She declined the invitation politely and left to return to Huntsville.
While she was driving home, Head called and urged again that she spend the night with him. He said he was driving to her house in Huntsville and that he would be there with beer to pick her up. He called several more times, telling her during one call that he was at her house, waiting. Baldwin told him to go home to his wife and kids.
A few days later, when Baldwin went to Head's office for a meeting, he closed the door, cornered her against a couch and said "Hey, Babe, blow me." She moved across the room and changed the subject. Head offered a report on his weekend: "Well, you know, we went out partying this weekend and that fucking bitch wife of mine, you know, she got tanked and we got home and she came pretty unglued and she came at me," and "I threw that fucking bitch on the floor." Head continued with more details about his interaction with his wife, leading Baldwin to become very concerned about her own safety around him, particularly given his sexual advance just a few minutes earlier.
In the months that followed this meeting, Head continued to engage in many forms of inappropriate behavior, including several incidents targeted directly at Baldwin. One time, after getting her attention by calling out "Hey Babe," Head unzipped his pants and began moving the zipper up and down. Other times, he would come up behind her, and literally breathe down her neck.
Throughout these months, Baldwin did not report Head's conduct to the employee relations department, as directed by the company's sexual harassment policy. However, she confided periodically to coworkers about his sexual propositions. Finally, on November 8, 2001, after she had two major conflicts with Head, she filed an internal complaint.
Blue Cross's Response to Baldwin's Complaint: Punish the Victim?
To be more specific, Baldwin submitted a written synopsis of her allegations about Head's behavior. She met with Emma Barclay in the human resources department and gave an oral synopsis as well.
As a result, Barclay; Rick King, the vice president of human resources; and Sharon Heaton, another human resources employee, traveled to Huntsville to investigate Baldwin's allegations. They interviewed Head and other employees at a local restaurant, ultimately concluding that they could not substantiate Baldwin's allegations.
Because the company deemed the evidence "inconclusive" as to whether Baldwin was harassed, they refused to discipline Head. Instead, they gave Baldwin two options to make her work environment tolerable: go to counseling with Head, or transfer to an office in another city two hours away. When Baldwin refused both options, she was terminated.
Was There Actionable Harassment? The Court Wrongly Says No
The district court had granted summary judgment to Blue Cross, and the Court of Appeals for the Eleventh Circuit affirmed that ruling. Thus, as noted above, Baldwin lost. At the same time, so did other sexual harassment victims who must try their cases within the Eleventh Circuit, which encompasses Alabama, Florida and Georgia.
That is because the ruling dramatically undermines the ability of Title VII to provide such plaintiffs with appropriate legal redress for discrimination they have suffered. Significantly, the court made it harder to prove that harassment is actionable and harder to prove that the employer should be held liable:
First, the district court found that the harassment Baldwin alleged, even if true, was not sufficiently severe or pervasive to be actionable. The Court of Appeals did not directly affirm this aspect of the ruling, since the case was disposed with on other grounds. However, its analysis suggests it would have reached the same (wrong) conclusion.
Of course, the district court was right that the mere use of profanity at work is not inherently unfair to women. However, the use of derogatory sex-specific terms like "bitch" and "slut" surely is.
It's true, too, that not all jerks are harassers. Yet a jerk of a boss should not be insulated from claims of harassment simply because he also does other obnoxious things, in addition to harassing a subordinate.
Moreover, and more importantly, a supervisor's repeated, unwanted sexual advances toward a subordinate are clearly sufficient to be actionable in a court of law. And based on the facts above - the facts the Eleventh Circuit considered for purposes of his decision - Baldwin plainly suffered a string of repeated, unwanted sexual advances..
Did the Employer Satisfy the Affirmative Defense? The Erroneous "First Prong" Finding that the Investigation Sufficed
Not only did the Court of Appeals suggest wrongly that the harassment Baldwin suffered was not sufficiently severe or pervasive, but it also wrongly found that the employer had established both prongs of its affirmative defense.
(In this section of the opinion, the Court of Appeals focused only on the question of liability, rather than on the validity of the underlying claim of harassment. For, under the somewhat perverse structure of harassment doctrine, an employee can suffer illegal harassment and yet have no legal remedy - if the harassment is of the "hostile environment" variety, and the employer establishes the affirmative defense.)
In analyzing Blue Cross' assertion of the Faragher/Ellerth affirmative defense, the Court of Appeals made several key mistakes:
First, the Court of Appeals wrongly concluded that Blue Cross established the first prong of the affirmative defense in that they took reasonable measures to prevent and correct harassment. In reaching this conclusion, the court refused to look closely at the deficiencies Baldwin alleged in the internal investigation.
Among other things, Baldwin complained about the method and location for interviewing witnesses, and the investigators' dismissal of concerns they themselves had raised that the witness reports seemed "rehearsed." The deficient investigation, she alleged, had serious consequences: the company failed to find that she had been harassed by her supervisor.
Given that the witnesses interviewed were also subordinates of Head's, the possibility is strong that they lied during the investigation, to save their own jobs. Also, if they sounded rehearsed, was it perhaps because Head prepped them? Or, did they get together on their own, to make sure their stories were consistent? These possibilities suggest the need for a much more searching investigation than Blue Cross actually undertook here.
Rather than evaluate the investigation for legal sufficiency, however, the court complained: "We already have enough to do, our role under the Faragher and Ellerth decisions does not include micro-managing internal investigations."
This is a strange complaint from a court charged with implementing federal laws. In Faragher and Ellerth, the Supreme Court established a framework that made internal investigations the centerpiece of the remedial structure for problems of workplace harassment. Victims who fail to complain lose their right to sue; employers who fail to maintain grievance procedures are subject to strict liability for harassment.
With stakes this high, resulting from a line the Supreme Court drew, how can an appellate court refuse to seriously evaluate a company's internal investigation? When victims lose their right to sue, it ought to be because companies provided at least some counterpart of a fair court procedure. If not, then companies can use monkey trials to evade the law.
Indeed, under the Court of Appeals's standard, employers have no incentive to conduct a good investigation, since any old investigation will offer them the same safe harbor from liability. The court specifically wrote that a legally sufficient investigation "may include conducting the inquiry informally in a manner that will not unnecessarily disrupt the company's business, and in an effort to arrive at a reasonably fair estimate of truth." But, again, informal inquiries - like the one here, a chat at a local restaurant -- are hardly a substitute for one's day in court.
Second, the Court of Appeals concluded that the "remedial" options offered to Baldwin - go to counseling with the alleged harasser, accept a transfer, or be fired - were reasonable.
Recall that, because the court was reviewing a grant of summary judgment to Blue Cross, it was required to assume that the harassment occurred as Baldwin alleged. In light of that assumption, how could the court truly say that these options represented reasonable efforts to correct the problem?
Consider, once again, what those options were: Why should a victim of harassment have to undergo counseling with the man who visited unwanted sexual advances on her? After all, the initial harassment was traumatic enough. Sending the two to counseling, as if they were a couple, only furthers the harasser's view of their relationship, which is supposed to be collegial, not romantic.
In addition, why should she have to relocate, lose her "book" of business, and start over just to get away from him? And why should she be fired for being unwilling to make a choice between two profoundly unfair alternatives?
These two flaws worked together against Baldwin: Because the company conducted a poor investigation, they were not able to corroborate her allegations and refused to take action against the supervisor. Then, because the court refused to review the quality of the investigation, the "remedial" options offered to a plaintiff with unsubstantiated allegations were deemed reasonable. If the witnesses' "rehearsed" descriptions of the work environment had been further tested, perhaps the company would have decided to offer Baldwin more palatable remedies.
The Erroneous "Second Prong" Finding that Baldwin Was Untimely in Reporting the Harassment
Third, the court wrongly held that the employer established the second prong of the affirmative defense as well -- the one that focuses on the victim's failure to take advantage of corrective opportunities made available by the employer.
Baldwin, the court said, did not comply with her duty to promptly report harassment she experienced at work. She complained three months after the first sexual advance, which, according to the court, "is anything but prompt, early, or soon."
Why didn't Baldwin complain right away? Her goal, she testified, was to "just go along to get along." Research shows that this is the typical reaction of victims in her situation, who face many deterrents to complaining about harassment, such as retaliation, ostracization by co-workers, and being labeled a "complainer" to name just a few. (I've discussed research on victim reporting and reactions at greater length in an earlier column.)
Yet, the court deemed Baldwin's behavior unreasonable as a matter of law - rather than simply holding that it raised a genuine issue of fact that a jury ought to resolve. Other federal courts have been similarly stingy in their interpretation of this prong, holding delays as short as a week sometimes to be inexcusable. But these interpretations, too, fail to accord with the reality as to how long it takes bona fide victims to complain. Our society sends deeply mixed messages when it encourages women to try to thrive in a male world, yet - through decisions like these - also tells them they must instantly complain at the first sign of potential harassment.
Finally, the court also faulted Baldwin for failing to cooperate with her employer by accepting one of the "remedial" choices they offered her. Given her view of her supervisor, his behavior, and the importance of her own career, it is hardly surprising or unreasonable that she would reject both options.
A Court That Thought it Had Better Things to Do Than Enforce the Law
The Eleventh Circuit Court of Appeals has, with its decision in Baldwin v. Blue Cross, done a disservice to Title VII and all the victims of harassment who deserve its protection.
What hope is there for eradicating sex discrimination in the workplace, when a federal court claims it has better things to do than enforce the legal standard by which it is bound?
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