Clarifying cases of sexual harassment

By Richard L. Wiener, PhD, and Linda E. Hurt
St. Louis University

In its 1997?98 term, the U.S. Supreme Court made employers strictly liable for sexually harassing actions of their supervisors, while at the same time narrowing the protection available for public school students who file similar claims.

In Burlington Industries, Inc. v. Ellerth (118 S.Ct., 2257, 1998), Kimberley Ellerth complained that a company vice president, Mr. Slowik, implied that he would advance Ellerth if she granted him sexual favors. Ellerth never had sexual relations with Slowik but nonetheless received regular promotions.

The Supreme Court held that even in cases in which a supervisor does not exact sexual contact in exchange for advancement, a company is strictly liable (i.e., liable regardless of whether company executives knew or should have known about the abuses) for supervisors who create hostile work environments.

Strict liability does not attach if the employer exercises reasonable care to prevent and correct sexually harassing conduct, and the plaintiff unreasonably fails to take advantage of company sexual harassment policies and procedures.

The Court affirmed this logic in Faragher v. Boca Raton (118 S.Ct., 2275, 1998) when it held the city strictly liable for the actions of its lifeguard supervisors who fondled and sexually harassed female lifeguards. Previously, courts reserved strict liability for quid pro quo situations (i.e., the exchange of tangible economic rewards for sexual favors) and applied a negligence standard to hostile work environment cases (i.e., unwelcome sexual conduct that is severe or pervasive).

In both cases, the Court made it easier for plaintiffs to recover damages in hostile work environment claims against their supervisors.

Meanwhile, even though the Court?s decisions in Title VII cases have consistently extended the reach of sexual harassment prohibitions, it sent a very different message in Gebser v. Lago Vista Independent School District (118 S.Ct., 1989, 1998), which was based on Title IX, which prohibits gender discrimination in education programs receiving federal funds (20 U.S.C. Sec. 1681.a).

In that case, a teacher had sexual intercourse on multiple occasions with high school student Alida Gebser until a police officer caught the two and arrested the teacher. Gebser?s family brought a sexual harassment case based upon Title IX. But the Court refused to hold the Lago Vista district liable for the damages that the teacher?s sexual behavior caused Gebser.

The Court held that a public school is not liable for the discriminatory damages caused by one of its teachers unless an empowered administrator gains actual knowledge of the alleged discrimination and shows deliberate indifference. Apparently, the Court assumed that young girls and boys are mature and thoughtful enough to expose sexual misconduct to high-ranking school authorities.

In defining what constitutes a high-ranking school official, the Eleventh Circuit Court of Appeals, in a separate case, cited the Gebser decision. In that case (see Floyd v. Waiters 133 F.3d, 786, 11th Cir., 1998) the court said it was not sufficient that the supervisor of a school security guard who raped a high school student was aware of the guard?s misconduct. It held that under Gebser Title IX requires the school superintendent or the school board be deliberately indifferent to the misconduct. (Note: The Supreme Court has agreed to hear Floyd on appeal.)

Making the situation more confusing, in Morse v. University of Colorado (154 F.3d , 1124, 10th Cir. 1998), the Tenth Circuit held that the university could be sued for the actions of an Army ROTC student who sexually harassed a fellow student, given that the victim reported the incident to the university affirmative action officer and a dean. Thus, the final standard for actual knowledge of a harassing incident under Title IX remains unclear.

The theories of liability that the Supreme Court applies in Titles VII and IX appear indifferent to the common experience of workers and students. That is, the courts assume a great deal about the effects of different reporting standards without knowledge of the impact of those standards on the behavior of workers, teachers and students.

Psychologists can assist the courts in clarifying the distinction between Title VII and IX liability by investigating the impact of victim reporting requirements on the perceptions of safety, control and comfort in students and workers.

It may be that the less stringent standard in Title VII can be justified by adult workers? sensitivity to gender discrimination, or it may be that the higher standard under Title IX simply shows unrealistic expectations about anticipated conduct of students. In the final analysis, psychological research and expertise could help reveal the behavioral differences that the law should take into account.