Progressive Litigation

Employer Liability for Harassment - Washington Law

Illegal harassment in the work place continues to be an extremely common claim despite widely publicized jury verdicts awarding substantial sums for recovery. So long as bigotry and ignorance remain a part of human nature, meritorious allegations of racial and sexual harassment will continue to be raised. Employers, however, are rarely automatically liable for claims of illegal harassment or the existence of a hostile work environment.

Although the standard in Washington State and the Ninth Circuit for employer liability is generally well established, some ambiguity remains. In addition, other jurisdictions apply different standards. Recently, the United States Supreme Court has granted certiorari to resolve a split in the circuits on the issue of employer liability in harassment cases. Faragher v. City of Boca Raton, 111 F.3d 1530 (11th Cir. 1997)(en banc), certiorari granted 11/14/97. A real potential exists that Washington and Ninth Circuit law could be effected. The circumstances under which employers are liable for harassment and/or hostile work environment claims continue to evolve.

Harassment - Respondeat Superior

To establish employer liability for sexual harassment 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-Pac¬ific Corp., 103 Wash.2d 401, 406-07, 693 P.2d 708 (1985). This same test applies to racial discrimina¬tion. Fisher v. Tacoma School Dist. No. 10, 53 Wn.App. 591, 595 769 P.2d 318 (1989).

Under Washington law, to hold an employer responsible for the discriminatory work environment created by a plaintiff's supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action. This may be shown by proving (a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving 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 and (b) that the employer's remedial action was not of such nature as to have been reasonably calculated to end the harassment. Glasgow, supra at 407. See also Wilson v. Olivetti North America, Inc., 85 Wn.App. 804, 812, 934 P.2d 1231 (1997). In addition, knowledge is imputed to an employer "where an owner, manager, partner or corporate officer personally participates in the harassment." Glasgow, supra.

Quid pro quo cases are the exception to the rule, and the employer is strictly liable. DeWater v. State, 130 Wn.2d 128, 134, 921 P.2d 1059 (1996)("An employer is strictly liable for quid pro quo harassment perpetrated by supervisory personnel who have actual or apparent authority to make employment decisions on behalf of the employer.").

The distinction between "manager" and "supervisor" is significant since harassment by a manager automatically results in knowledge to the employer. In those cases, the failure to take prompt remedial action necessarily follows since the harasser and management are identical. Harassment by a non-managerial supervisor, on the other hand, requires either actual or constructive knowledge to the employer. It also requires an independent showing that management failed to take prompt remedial action. Unfortunately, there is little judicial guidance to help determine at what point a so called supervisor becomes a manager for purposes of imputed notice.

The standards in the Ninth Circuit are essentially the same. Respondeat superior is established only where "management level employees knew, or in the exercise of reasonable care should have known." EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir. 1989). As with state law, the distinction between "management" and "supervisory" employees appears to be critical, and the Court provides no real guidance about how to make the distinction.

The Fourth Circuit, however, 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). A non-management employee could easily fall within that standard. The Tenth Circuit found employer liability where the employee relied on the supervisor's apparent authority or the supervisor was aided in his harassment by the existence of the agency relationship. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1418 (10th Cir. 1987). 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).

Certiorari Granted

The United States Supreme Court has granted certiorari to resolve these issues. Faragher v. City of Boca Raton, 111 F.3d 153 (11th Cir. 1997)(en banc). In an poorly reasoned opinion, the Court found no "direct" or "indirect" employer liability. Twelve judges produced four opinions, with five judges dissenting.

In relevant part, the Court relied upon traditional agency principles to establish the existence of vicarious liability: 1) when a harasser is acting within the scope of his employment in perpetrating the harassment; and 2) when a harasser is acting outside the scope of this employment, but is aided in accomplishing the harassment by the existence of the agency relationship. Id. at 1536.

In the reference to the first alternative, the Court found that neither of the harassers were acting within the scope of their employment. The Court ruled that within this context, their is no liability where the "agent has no intention to perform any service for his employer, but instead seeks only to further some personal end...." Id. at 1536. The Court found that there "no evidence that either of the harassers acted "in order to perform any service for the City, or that they were either explicitly or implicitly authorized by the City to engage in such harassment." Id. at 1537. Applying this reasoning an employer could never be vicariously liable because harassers literally never act to perform a service for their employer.

In reference to the second alternative, the Court found that neither of harassers "were aided in accomplishing the harassment by the existence of their agency relationship with the City." Id. In order to qualify for this alternative, employer liability could only exist if from the "point of view of third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of business confided to him." Id. The Court reasoned that because no one threatened to fire or demote the plaintiff for refusing sexual advances, and no employment decisions were made based upon the Plaintiff's refusal, then the agency relationship did not aid in the accomplishment of the harassment. Id. In other words, because the harassment did not rise to the level of pro quid quo, there could be no vicarious liability.

Utilizing this reasoning, it would be impossible to establish vicarious liability in absence of actual or constructive knowledge. The concept of imputed knowledge is rejected entirely, even where the harasser is a corporate President.

The issue of when, if ever, liability can be imputed to the employer under federal law remains to be decided by the United States Supreme Court.