No. 86-8790.United States Court of Appeals, Eleventh Circuit.
October 20, 1987.
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David R. Sweat, Jeanne M.L. Player, Athens, Ga., for plaintiff-appellant.
Morgan, Lewis Bockius, James J. Kelley, Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before HILL and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.
KRAVITCH, Circuit Judge:
[1] Barbara Sparks appeals the district court’s grant of summary judgment in Sparks’ sexual harassment and sex discrimination action filed against her former employer, Pilot Freight Carriers, Inc. (Pilot Freight), pursuant to Title VII, 42 U.S.C. § 2000e et seq. We reverse the grant of summary judgment and remand.[2] I. STATEMENT OF FACTS
[3] Appellant Sparks was employed by Pilot Freight as a billing clerk in its Duluth, Georgia trucking terminal from May 1983 until March 1984. In February 1984, Pilot Freight promoted Dennis Long, a former sales manager in the Atlanta terminal, to the position of terminal manager of the Duluth terminal. As terminal manager, Long held the highest position in the Duluth terminal and, according to Sparks, had authority to exercise virtually unfettered discretion over personnel matters, including the hiring and firing of employees. According to Sparks, the only Pilot Freight employees superior to Long were stationed in Pilot Freight’s headquarters in North Carolina.
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the first being that Connell engaged in unlawful disparate treatment because of sex when he discharged her and not Turner; the second is that her discharge resulted from quid pro quo
sexual harassment in that Long induced Connell to fire her in retaliation for her refusal to accede to his sexual demands.
[9] II. WORKING ENVIRONMENT SEXUAL HARASSMENT
[10] Title VII of the Civil Rights Act of 1964 makes it unlawful for “an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s . . . sex . . . .”42 U.S.C. § 2000e-2(a)(1).
A.
[11] In Meritor Sav. Bank, FSB v. Vinson, the Supreme Court held that an employee may establish a violation of Title VII by proving that the employee’s employer engaged in discrimination based on sex, including sexual harassment, which created a hostile or abusive work environment.[1] 477 U.S. 57, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986); accord Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982). An employee asserting a claim of hostile working environment sexual harassment by an “employer” must prove the following in order to establish a prima facie
case: (1) that the employee belongs to a protected group Henson, 682 F.2d at 903; (2) that the employee was subject to “unwelcome” sexual harassment, Vinson, 106 S.Ct. at 2406 Henson, 682 F.2d at 903; 29 C.F.R. § 1604.11(a) (1985); (3) that the harassment complained of was based on sex, Henson, 682 F.2d at 903; and (4) that the harassment complained of affected a “term, condition, or privilege” of employment in that it was “sufficiently severe or pervasive `to alter the conditions of [the victim’s] employment and create an abusive working environment.'” Vinson, 106 S.Ct. at 2406 (brackets in original) (quoting, Henson, 682 F.2d at 903).
however, the district court overlooked the fact that the Henson
court’s decision to employ respondeat superior theory rested on its assumption that the plaintiff’s alleged harasser was her supervisor but not her “employer.” Henson, 682 F.2d at 905, n. 9. Here, in contrast, Sparks alleges that Long was both her supervisor and her “employer,” as that term is defined under Title VII. [15] Under Title VII an “employer” is directly liable for its own sexual harassment of its employees. See 42 U.S.C. § 2000e-2(a)(1),
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29 C.F.R. § 1604.11(c). Thus, where the harasser is plaintiff’s “employer,” respondeat superior theory does not apply and plaintiff need not establish that she gave anyone notice of the harassment.[2] Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1422 (7th Cir. 1986); Horn v. Duke Homes, Div. of Windsor Mobile Homes, Inc., 755 F.2d 599, 604
(7th Cir. 1985); see Vinson, 106 S.Ct. 2408-09; Henson, 682 F.2d at 905 n. 9.
B.
[17] Title VII does not define the term “agent.” Rather, in determining whether a supervisor was acting as an “agent” for Title VII purposes, courts must look for guidance to common law agency principles. Vinson, 106 S.Ct. at 2408, citing, 42 U.S.C. § 2000e(b) and Restatement (Second) of Agency §§ 219-237 (1958).
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slip op. at 8, citing Restatement (Second) of Agency §§ 219(1), 228(2).
[19] Although the district court recognized that an employer may be liable under section 219(2) of the Restatement for its servant’s actions even though the servant was not acting “within the scope of his employment,” the district court concluded that none of section 219(2)’s exceptions to the general rule of section 219(1) apply to this case. Accordingly, the district court granted summary judgment for Pilot Freight on the issue of whether Long was acting as Pilot Freight’s agent when he harassed Sparks Sparks, No. C85-2941A, slip op. at 9, citing Restatement (Second) of Agency § 219(2). [20] In holding that none of the enumerated exceptions to the “within the scope of employment” rule apply, the district court apparently overlooked section 219(2)(d). This section provides that a master is liable for the torts of his servants acting outside the scope of their employment where:[21] Under this section, unlike under section 219(1), the master is not insulated from liability by the fact that the servant was acting entirely for his own benefit. See id. at §§ 219(2), 235 Comment E; see also id. at §§ 262, 265. [22] Interpreting general agency rules, and presumably relying primarily on section 219(2), the Equal Employment Opportunity Commission (EEOC) has concluded that a supervisor acts as an “agent” of the employer for Title VII purposes, thus rendering the employer directly liable for the supervisor’s actions, “where [the] supervisor exercises the authority actually delegated to him by his employer, by making or threatening to make decisions affecting the employment status of his subordinates.” Vinson, 106 S.Ct. at 2407-08 (stating, without ruling on, the position of the EEOC in its amicus brief);[6] see Horn, 755 F.2d at 605(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relationship. (emphasis added).
(employing the same rule). The EEOC reasoned that agency principles require holding the employer liable because it was the employer’s delegation of authority that empowered the supervisor to so act. Vinson, 106 S.Ct. at 2408; accord Horn, 755 F.2d at 604-05; see § 219(d)(2), Restatement (Second) of Agency see also Henson, 682 F.2d at 909 (applying this analysis to hold an employer strictly liable for quid pro quo sexual harassment by its supervisors).[7] This liability is direct; the employer cannot find shelter in the claim that it neither had notice of, or approved of, the unlawful conduct. Vinson, 106 S.Ct. at 2408; see Horn, 755 F.2d at 604-05; 29 C.F.R. § 1604.11(c); § 219(d)(2), Restatement (Second) of Agency. [23] Adopting this rule and applying it to the instant case,[8] we observe that it is undisputed that when Pilot Freight made
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Long terminal manager of the Duluth terminal it vested him with both actual and apparent authority to alter Sparks’ employment status — including authority to fire her. Moreover, the evidence, considered in the light most favorable to Sparks, shows that Long used the authority delegated to him by Pilot Freight to assist him in harassing Sparks: specifically, Long repeatedly reminded Sparks that he could fire her should she fail to comply with his advances.[9] Therefore, we conclude that, when the evidence is viewed in the light most favorable to Sparks, Sparks has established a genuine issue of material fact as to whether Long was acting as Pilot Freight’s agent when he engaged in the alleged sexual harassment of Sparks. She consequently has established a genuine issue of material fact as to whether Pilot Freight is directly liable to her under Title VII. See Hamilton v. Rogers, 791 F.2d 439, 442-43 (5th Cir. 1986); Horn, 755 F.2d at 604-05. Accordingly, the district court’s grant of summary judgment on Sparks’ hostile working environment sexual harassment claim must be reversed. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510-11, 2513-14, 91 L.Ed.2d 202 (1986).
C.
[24] Pilot Freight contests this conclusion, asserting that it cannot be liable for Long’s actions because Sparks did not complain to anyone at Pilot Freight about Long’s conduct. Pilot Freight cannot prevail on this claim.
indicating that an employer may be insulated from liability for hostile working environment sexual harassment where (1) the employer has an explicit policy against sexual harassment, and (2) it has effective grievance procedures “calculated to encourage victims of harassment to come forward” that the plaintiff did not employ. Vinson, 106 S.Ct. at 2408-09. Pilot Freight has proffered no evidence that it had either a policy against sexual harassment or an effective grievance procedure; Sparks has asserted that Pilot Freight had neither. For summary judgment purposes we accept Sparks’ allegation as true. See Liberty Lobby, 106 S.Ct. at 2513-14. We therefore conclude that the Court’s suggestion in Vinson that an employer may be able to shield itself from Title VII liability for its supervisors’ sexual harassment by enacting an explicit policy against sexual harassment and an effective grievance procedure — so as to divest its supervisors of actual and apparent authority to harass employees — has no bearing on this appeal.
D.
[27] Nor are we inclined to accept Pilot Freight’s argument that, even if we reverse
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the district court’s conclusion that Long was not acting as Pilot Freight’s agent, we nevertheless should affirm the grant of summary judgment by reversing the district court’s denial of summary judgment as to the first four elements of Spark’s prima facie case.
[28] In particular, Pilot Freight asserts that it is entitled to summary judgment because Sparks has not established that Long’s harassment was sufficiently severe to be actionable under Title VII.[11] To be actionable under Title VII, the “sexual harassment” must have affected a “term, condition, or privilege” of employment within the meaning of Title VII. See Henson, 682 F.2d at 904. The Court in Vinson interpreted this as requiring proof that the sexual harassment was “sufficiently severe or pervasive `to alter the conditions of [the victim’s] employment and create an abusive working environment.'” Vinson, 106 S.Ct. at 2406 (quoting Henson, 682 F.2d at 904). This test may be satisfied by a showing that the sexual harassment was sufficiently severe or persistent “to affect seriously [the victim’s] psychological well being.” Henson, 682 F.2d at 904. [29] Applying this test, we conclude that the district court properly found that Sparks could survive a motion for summary judgment on her claim that Long’s alleged conduct is actionable under Title VII as it affected a “term, condition, or privilege” of Sparks’ employment. According to Sparks, Long repeatedly sexually harassed her and threatened her job — conduct which she said “frightened” and “upset” her, causing her to doubt her job security. See Sparks, No. C85-2941A, slip op. at 6. Accepting these allegations as true, we conclude that Long’s sexual harassment of Sparks was sufficiently persistent and severe to satisfy the Vinson requirement that the conduct must have seriously affected the plaintiff’s psychological well being.[12] Accordingly, Sparks has established a genuine issue of material fact as to whether Long’s conduct affected a “term, condition, or privilege” of her employment; the district court therefore should have denied summary judgment for defendant on this issue.[13]Page 1562
[30] III. SEX DISCRIMINATION
[31] Sparks’ second Title VII claim is a discriminatory treatment claim and is based on Connell’s decision to fire her but not Turner — an allegedly similarly situated male employee.
A.
[32] In order to establish a prima facie case of discriminatory treatment a plaintiff must demonstrate facts sufficient for a reasonable jury to infer that discrimination has occurred. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981); see Delgado v. Lockheed-Georgia Co., A Div. of Lockheed Corp., 815 F.2d 641, 644 (11th Cir. 1987) (same under the Age Discrimination in Employment Act (ADEA)); Anderson v. Savage Labs, Inc., 675 F.2d 1221, 1223 (11th Cir. 1982) (same).[14] This inference may be established by proof that the plaintiff: (1) belongs to the statutorily protected group, (2) was qualified for the job, (3) was discharged, and (4) was replaced by a person outside the protected group.[15] Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1538 (11th Cir. 1987); see Delgado, 815 F.2d at 644.
B.
[35] Because defendant Pilot Freight rebutted the presumption of prejudice by proffering evidence of a legitimate nondiscriminatory reason for firing Sparks, the issue on appeal from the grant of summary judgment for defendant is whether the record as a whole contains sufficient evidence
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from which the factfinder could infer that Pilot Freight was guilty of intentional discrimination.[17] See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir. 1987) (en banc), cert. dismissed, ___ U.S. ___, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). In the instant case, this inquiry into whether Pilot Freight in asserting its alleged legitimate reason has satisfied its burden of establishing the absence of a genuine issue of material fact as to whether it had a discriminatory motive for firing Sparks, is subsumed under the inquiry into employer pretext. See id. at 896, 898.
[36] An employee may rebut a defendant’s claim that it had a legitimate reason for firing her “indirectly by showing that the employer’s proffered explanation is unworthy of credence.”[18] Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; see Chipollini, 814 F.2d at 898 (same under the ADEA). Where, as here, the employer’s asserted justification is that the employee violated a work rule, the employee must prove pretext by showing either that she did not violate the work rule or that, if she did, other employees not within the protected class who engaged in similar acts were not similarly treated. Harris v. Plastics Mfg. Co., 617 F.2d 438 (5th Cir. 1980);[19] see Delgado, 815 F.2d at 644; Savage Labs Inc., 675 F.2d at 1224. Sparks asserts that both grounds for finding pretext apply here; we need consider, and therefore do consider, only one ground.[20] [37] Sparks’ primary basis for claiming that Connell’s asserted justification is pretextual is that she complied with the work rule. Sparks does not dispute that Pilot Freight had a rule requiring employees to notify it if they would not be coming in that day. This rule, however, according to Connell’s deposition testimony, was unwritten. Sparks asserts that a reasonable construction of this unwritten work rule is that it constituted a requirement that employees notify Pilot Freight that they are going to be out sick that day prior to the start of their shift. Sparks claims that the record demonstrates that she satisfied this requirement. The evidence most favorable to Sparks shows that several hours before the start of Sparks’ shift, Connell’s secretary, Hilda Tatum, called Sparks about a request Sparks had made earlier that day to change her hours. During that call, Sparks informed Tatum that she was sick and would not be coming to work that night. Moreover, as the district court observed, the evidence viewed for summary judgment purposes shows that Connell knew that Sparks had reported in sick. [38] Pilot Freight contests Sparks’ claim, arguing that under its unwritten work rule an employee is required not only to notify the employer of her intention to be out sick, but also to initiate the call in which the notice is given. It is this latter requirement, Pilot Freight asserts, that Sparks violated, but Turner did not, and which provided the basis for their disparate treatment.Page 1564
[39] We conclude that, viewing the evidence in the light most favorable to Sparks, Pilot Freight’s construction of its work rule — under which Sparks was required to make a separate phone call to re-report in sick despite the fact that she had just told Tatum, Connell’s secretary, that she would be out sick — could reasonably found to be implausible and unworthy of credence. The implausibility of the alleged justification is sufficient to create a genuine issue of material fact as to whether Pilot Freight’s articulated reason is pretextual. See Chipollini, 814 F.2d at 900 (summary judgment for defendant inappropriate where there is evidence that employer’s justification is implausible). [40] Moreover, in this case our conclusion that a genuine issue of fact exists as to whether Pilot Freight’s asserted justification is pretextual is supported by the fact that there is no evidence that Pilot Freight had ever before so interpreted its rule; in addition, Connell offered no explanation as to why employees allegedly are required to initiate all telephone calls made to report in sick. Furthermore it is undisputed that Connell had never before fired an employee simply because the employee failed to initiate a phone call to report in sick. Finally, there is no evidence that Pilot Freight had ever before treated a solitary violation of this rule as grounds for termination. [41] Accordingly, because Sparks has raised a genuine issue of material fact as to whether Connell’s articulated reason for firing her is pretextual, she has raised a genuine issue of material fact as to whether Pilot Freight had a discriminatory motive for firing her. See Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 717-18, 103 S.Ct. 1478, 1483, 75 L.Ed.2d 403 (1983) (Blackmun, J., concurring) (the McDonnell Douglas/Burdine framework requires that the plaintiff prevail if the plaintiff demonstrates that the legitimate, nondiscriminatory reason proffered by the employer is not the true reason for the employment decision). We therefore conclude that summary judgment for defendant on Sparks’ claim of sex discrimination should not have been granted.[21] See Liberty Lobby, 106 S.Ct. at 2510.[42] IV. QUID PRO QUO SEXUAL HARASSMENT
[43] Sparks’ third claim is one of quid pro quo sexual harassment. The essence of this claim is that Sparks suffered a tangible job detriment as a result of her reactions to Long’s sexual harassment of her because Long, in order to get revenge, influenced Connell to fire her.
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Sparks’ prima facie case. Because Sparks’ quid pro quo sexual harassment claim is based in part on her harassment by Long, we conclude, for the reasons stated in section II of this opinion, that the district court properly found that Sparks established a genuine issue of material fact as to the first three elements of her prima facie case. We reverse the district court’s grant of summary judgment on the fourth element.
[46] Sparks alleges that the following evidence, drawn from the deposition testimony submitted to the district court, permits the inference that Long influenced Connell to fire her as retaliation for her reaction to his sexual harassment of her: (1) Long threatened to have Sparks fired if she did not accede to his demands, (2) Long and Connell had worked together in the Atlanta terminal and apparently were friends, (3) another female employee who had refused Long’s advances stated that Long had influenced Connell to reprimand her based on fictitious problems, (4) Long and Connell allegedly discussed Sparks’ termination, although whether they discussed it prior to, or shortly after her termination is unclear, and (5) Sparks was fired for pretextual reasons after having been at the Atlanta terminal less than five days. Therefore, Sparks asserts that the grant of summary judgment was improper. [47] Pilot Freight retorts that Sparks’ evidence is insufficient to overcome Connell’s statements in deposition that he made the decision to fire Sparks independently of, and without consulting, Long. The district court concluded that the only deposition evidence that could possibly undermine Connell’s claim that Long did not influence him to fire Sparks was that of Pilot Freight employee Kathy Chastain, who testified that Long discussed Sparks’ termination with Connell. The court found that Chastain’s testimony did not refute Connell’s, however, because the court construed Chastain’s testimony as stating that the purported conversation between Long and Connell occurred after Sparks was fired. Concluding that there was no evidence to refute Connell’s claim, the court granted summary judgment for Pilot Freight. [48] The district court was incorrect both in his construction of Chastain’s testimony and in his decision to grant summary judgment. As Sparks observes, Chastain did not testify to having overheard a conversation between Connell and Long, as the district court said. Rather she testified that Long recited to her, on the day Sparks was fired, a conversation between himself and Connell about Sparks. While it is clear from Chastain’s deposition testimony that the conversation between Long and herself occurred after Sparks was fired, Chastain’s testimony does not indicate when the conversation between Long and Connell occurred. We conclude, after reviewing the deposition testimony of Chastain, that a jury could infer, based on her testimony, that the conversation between Long and Connell occurred before Sparks was fired. Because this inference is the one most favorable to Sparks, the party opposing summary judgment, it is this inference that we must adopt. See Liberty Lobby, 106 S.Ct. at 2513. [49] Once this inference is adopted, Connell’s statement that he made the decision to fire Sparks without consulting Long no longer stands unrefuted. We conclude that the testimony of Chastain, when considered in light of the rest of the evidence presented by Sparks — in particular the alleged absence of a legitimate reason for firing her and Long’s purported attempts to use his relationship with Connell to retaliate against other female employees — is sufficient to establish a genuine material issue of fact as to whether Long influenced Connell to fire Sparks in retaliation for Sparks’ reaction to his unwelcome advances. Given that being fired certainly is a tangible detriment, we conclude that Sparks has established a genuine issue of material fact as to the fourth and final element of he prima facie case. Accordingly, we reverse the district court’s grant of summary judgment on Sparks’ claim of quid pro quosexual harassment.
V.
[50] In conclusion, the district court’s grant of summary judgment as to each of Sparks’
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Title VII claims is REVERSED and the case is REMANDED for proceedings consistent with this opinion.
(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of Title 5), or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of Title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.
(Emphasis added).
(Marshall, J. concurring) (notice to employer may be necessary where supervisor was not acting as an agent in that he had no authority over the employee he was harassing); Rabidue v. Osceola Refining Co., 805 F.2d 611, 615, 619-20 (6th Cir. 1986) (same), cert. denied, ___ U.S. ___, 107 S.Ct. 1983, 95 L.Ed.2d 823 (1987); Henson, 682 F.2d at 905 n. 9; 29 C.F.R. § 1604.11(d).
[A]n employer . . . is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of the occurrence. 29 C.F.R. § 1604.11(c).
Finally, we note that other circuits have similarly applied agency principles to actions involving an employer’s liability for sexual harassment by its supervisors. E.g., Horn, 755 F.2d at 604-05; Vinson v. Taylor, 753 F.2d 141, 148 (D.C. Cir. 1985) aff’d sub. nom., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), on remand, Vinson v. Taylor, 801 F.2d 1436 (1986); see Hamilton v. Rodgers, 791 F.2d 439, 442-43 (5th Cir. 1986) (employing the same rationale to find an employer liable for race discrimination by intermediate supervisors).
n. 8, 98 S.Ct. 364, 369 n. 8, 54 L.Ed.2d 376 (1977); see also Whitley v. Albers, 106 S.Ct. 1078, 1088 (1986). This rule obtains even though such arguments may involve an attack upon the reasoning of the court below. Massachusetts Mutual Life Ins. Co. v. Ludwig, 426 U.S. 479, 481, 96 S.Ct. 2158, 2159, 48 L.Ed.2d 784 (1976).
Moreover, we question the usefulness of requiring a factfinder to distinguish between “ambiguously” and “patently” offensive actions considering that most complaints of sexual harassment are based on actions which, although they may be permissible in some settings, are inappropriate in the workplace. What can be a “compliment,” as Judge Hill puts it, between two persons who have a social relationship can be abusive in the workplace — but that is, in many cases, the whole point of the sexual harassment claim. With access to all the evidence, and with the common sense to make credibility determinations, a factfinder should not find it difficult to distinguish between harassing actions that constitute a violation of Title VII and those “ambiguous” actions which simply may not “create an abusive working environment.”
(11th Cir. 1986), cert. denied, ___ U.S. ___, 107 S.Ct. 883, 93 L.Ed.2d 836 (1987).
been motivated by discriminatory animus. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir. 1987) (en banc) (emphasis in original), cert. dismissed, ___ U.S. ___, 108 S.Ct. 26, 97 L.Ed.2d 815, (1987); see Burdine, 450 U.S. at 254-56, 101 S.Ct. at 1094-95.
argued: “in a hostile environment case the employer often will have no reason to know about, or opportunity to cure, the alleged wrongdoing.” Vinson, 477 U.S. at ___, 106 S.Ct. at 2407. By definition employers should have more reason to know of biases displayed in tangible ways than of biases woven into the environment. [56] Likewise, the standard the court chooses must recognize that racial and gender discrimination differ. In both instances we find patently offensive types of conduct which cannot be justified and which the law demands be rectified. And yet in cases of gender discrimination we find a second and more subtle strain of conduct which may or may not be offensive given the relationship between the parties at the given time. For example, to a given individual, the gender-based compliment may be acceptable when placed in the context of a relationship between the parties; the same statement may be offensive when that relationship does not exist or has soured. The law stands ready to protect workers against sexually harassing behavior, but it need not and ought not intervene when neither party is offended by the actions. Thus, the standard chosen by the court must be able to measure the behavior within the contours of the situation as it existed at the time of the allegedly discriminatory behavior. [57] I would propose the following two-step test for analyzing hostile environment situations. First, it must be determined whether or not the allegedly discriminatory behavior was ambiguously or patently offensive. Where the conduct was patently offensive and the offending individual was plaintiff’s supervisor, the inquiry may end: with or without notification of the wrong, the employer may be held liable. [58] However, where it is found that the supervisor’s behavior was ambiguous, i.e., less than overtly offensive, a second finding
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must be made as to whether the plaintiff, by some objective action at the time of the allegedly offensive conduct displayed objection to the conduct of the supervisor. These expressions of dissatisfaction may not always be through formal channels of protest within the employer’s structure (although such methods would be the best display of the fact that ambiguous conduct was offensive to the employer), and thus while this test will often provide notice to the employer, it will not guarantee such notice. However, the objective demonstration of displeasure will clarify and define the otherwise ambiguous actions of the supervisor, and will prevent any reinterpretation of the situation via hindsight.
[59] I would remand the case for a trial and determinations according to the standards set forth in this concurring and dissenting opinion.