Who Should Be Liable for Sudden, Severe Sexual Harassment?
The Important Question of Whether Employers Should Pay

In 1999, Lucianne Walton was working as a pharmaceutical sales representative for Ortho-McNeil Pharmaceutical ("Ortho"). She has sued Ortho for sexual harassment.

Specifically, she alleges that that year, over a two-month period, her supervisor, George Mykytiuk, groped her, fondled her, and repeatedly raped her. While he never explicitly threatened her, she alleges that he committed several of these acts after having showed her the gun he kept close at hand.

She says he had the opportunity to harass her in part because much of the company's pharmaceutical sales force works out of home offices, and most contact between supervisors and subordinates takes place on the road, or at the supervisor's house. (Most of the alleged incidents, according to Walton, took place at Mykytiuk's home.)

These are obviously extremely serious allegations that deserve to be heard. Sadly, however, this case -- Walton v. Johnson & Johnson -- will never reach a jury. The trial court granted summary judgment to Ortho. And recently, the U.S. Court of Appeals for the Eleventh Circuit affirmed that ruling.

The Court of Appeals' opinion dodged several important issues. Among them was the important issue of so-called "sudden, severe harassment." The issue is this: Can an employer be held liable for such harassment as long as the victim pursued reasonable avenues of complaint? Or is the employer off the hook for all the harassment if it took reasonable measures to prevent it from happening, and reasonable measures to correct it afterward?

Put another way, who should pay the price for "unavoidable" harassment--the victim or the employer?

In two 1998 cases -- Faragher v. City of Boca Raton and Burlington Industries v. Ellerth -- the Supreme Court established a new approach to analyzing employer liability for sexual harassment by supervisors.

Its bottom line was that the employer should be liable for all acts of its agents (read: supervisors) if they are "aided" by the "existence of the agency relation." That could happen, for instance, if the fact that the boss is the boss means that he can force contact with the victim; make his conduct more threatening; make the victim's submission more likely; and make her filing a complaint less likely.

In most workplaces, as the Court recognized, this is the reality: No one wants to upset their boss, and so many employees will endure a lot before complaining. Thus, the Court held that employers would generally be automatically liable for their supervisors' sexual harassment of their subordinates.

However, it also held that the rule is limited by an affirmative defense -- that is, a defense that the employer must raise. But that defense can only be raised when no tangible employment action is taken against the victim -- that is, she is not fired, demoted, or the like.

To establish the affirmative defense, the employer must make a two-pronged showing. First, it must show that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Second, the employer must also prove that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to otherwise avoid harm.

The Supreme Court has made clear that both prongs must be proven for an employer to establish the affirmative defense, and avoid liability or damages. But not all federal appellate courts have taken the hint. Instead, some have flagrantly misapplied Supreme Court precedent.

For example, the U.S. Court of Appeals for the Fifth Circuit, in Indest v. Freeman Decorating, Inc., held in effect that satisfying the first prong was enough. There, the employer's response was "swift and effective." But the employee also timely complained -- meaning the second prong was not satisfied. The case thus should have gone forward. But it did not.

Some courts seem to think that as long as the employer does all it can, it isn't liable. But that is simply not the law. Only additional proof -- proof the employee did not timely or properly complain -- can establish the affirmative defense.

In such a case, the affirmative defense is difficult to apply.

First, consider the first prong. Did the employer take adequate preventive and corrective measures? Possibly.

But now consider the second prong, also necessary: Did the plaintiff fail to take the opportunity to complain? That can be hard to answer. On one hand, the plaintiff may not have complained (or not complained promptly enough), and she may technically have had the opportunity to do so, since a procedure was in place. But even if she fails to complain, shouldn't the employer be liable for the conduct that occurred before she had a chance to complain?

Consider the Walton case. First, the first prong: Did Ortho take adequate preventive measures? With respect to preventive measures, the company had a formal, written policy prohibiting harassment and specifying complaint procedures.

With respect to corrective measures, when Walton complained, Ortho first suspended and ultimately fired Mykytiuk -- though not for sexual harassment. Unable to conclusively prove that the sexual interaction was non-consensual, Ortho fired Myktiuk for "exercising poor judgment."

Now, the second prong: Did Walton fail to take the opportunity to complain? She waited nearly two months. But should that matter, given that the harassment was sudden and severe?

The district court thought so. It held that by complaining earlier, Walton could have avoided "most, if not all of the actionable harassment."

But there's a major problem with that conclusion: The very first incident alleged involved unwanted sexual touching. Thus, Walton had already suffered serious harassment before she had any chance to complain. (Most courts, as well as the EEOC, treat a single incident of physical harassment as actionable, whether or not it happens again.)

In light of this error, the appellate court should have reversed part of the district court's summary judgment grant. At a minimum, Walton was entitled to have a jury hear about that first incident -- and any other harassment that she could not have prevented by complaining. But that was not what the appellate court ordered. Instead, it made two major mistakes.

First, the Eleventh Circuit misapplied its own rule about whether parties that fail to raise issues before the district court, can then raise them on appeal. (Its precedents say the general rule doesn't apply when the issue is legal, and the failure to address it would result in a "miscarriage of justice." This plainly was a legal issue. And certainly the failure to address it led to a miscarriage of justice: Walton's allegations--of repeated rapes by her supervisor--will never have the opportunity to be aired before a jury.)

Second, it hinted--without holding--that even if it had reached the issue, Walton might not have prevailed. But that simply isn't true. For reasons above, with respect to early alleged harassment, Ortho could not have satisfied the second prong with respect to the initial harassment.

The Eleventh Circuit thus misapplied the law. Its decision was wrong based on the black letter rules set out in Faragher and Ellerth. Moreover, it also betrayed the idea behind these rules.

The idea of these two cases was to adopt a standard of automatic liability -- a standard more stringent than that of mere negligence on the employer's part. The idea was that even a non-negligent employer might be liable for the actions of its supervisors.

In reality, though, non-negligent employers are almost always safe. It's easy to satisfy the first prong -- the employer need only take reasonable preventive measures (anti-harassment policy and procedures) and corrective measures (investigation and discipline, if warranted), and respond to incidents when it hears of them.

But what about the second prong? The non-negligent employer can usually satisfy that too.

Some employees complain too late, when they could have complained earlier, because the harassment was not initially sudden or severe. In that case, the second prong is satisfied.

Some employees do promptly complain when the harassment is not sudden or severe. Often, the employer can then stop the hostile environment almost before it happens -- taking down the very first centerfold that's posted in the factory, for instance, may means there's no actionable harassment claim (and thus no need to even consider the affirmative defense).

But what if the harassment is sudden and severe? In that case, liability should truly be automatic. The environment is legally hostile from the outset, and the victim has a cause of action even before she complains -- as I pointed out was the case with Walton. Thus, regardless of when the victim complains, the employer should be liable for at least the initial, unpreventable harassment.

That's the law -- as the Supreme Court sees it. But is it correct? Or, put another way, is it a good idea to hold non-negligent employers liable in cases of sudden, severe harassment?

The answer, I believe, is yes. After all, it is little comfort to the victim of an assault by her supervisor that he is subsequently fired for his behavior; the harm has already been done. The employer may have been non-negligent, but she has still suffered damage caused by a supervisor it employed.

A rule holding employers liable in such cases correctly allocates the risk of harm between employers--who hire, train, and monitor supervisors--and victims, who have no control over their working environment. It incentivizes employers to make sure their preventive measures are not just superficial mantras against harassment, but real, effective, mechanisms for ensuring those to whom they delegate authority do not abuse it, to the detriment of subordinate employees.

This allocation is particularly appropriate in a case like Walton's. As noted above, subordinates were often required, in effect, to meet with their supervisors in a private home or on the road, not in an office. Employers have a heightened duty to screen, train, and monitor supervisors when they exert supervisory authority without conventional forms of oversight.

Lucianne Walton should have had the opportunity to get her case to a jury. She claims she was the victim of a horrendous series of harassing incidents at the hands of her supervisor. A jury should decide if her claims have merit. Shame on the Eleventh Circuit for preventing her from having her day in court, before a jury.