Vol. 72, No. 18, June 9, 2001

OBA House Counsel Section:
Sexual Harassment in the New Millennium: Is the Court's Test Effective?
By Michael E. Chionopoulos

Sexual harassment has become the watchword in the new millennium for those employers who wish to avoid the expensive, and often distasteful, experience of litigation. The emerging federal trend should ease employer concerns, but it may sufficiently frighten employees. This article, while not intended to be an exhaustive summary of cutting-edge law, will provide general practitioners and corporate counsel a feel for emerging trends.

Amazingly, at pre-dawn of the new millennium, the 11th Circuit found in favor of an employer over a complaining employee who was terminated for failing to report to work.1 A female employee, Ms. Mendoza, alleged her male supervisor constantly watched her, followed her, looked her up and down and stared at her groin area while making sniffing sounds and motions during her employment at Borden, Inc. Ms. Mendoza worked for Borden for approximately 16 months, and for 11 of those months she was supervised by the alleged harasser. The court held "...the conduct alleged by Mendoza falls well short of the level of either severe or pervasive conduct sufficient to alter Mendoza's terms or conditions of employment."2 The 11th Circuit decision in Mendoza, which follows similar decisions from the 5th and 10th Circuits3 that will be discussed infra, marks a distinct employer-friendly shift in the law.

In Oklahoma, as in many other jurisdictions, "[s]exual harassment is a form of gender-based discrimination, which can be shown under one of two primary theories: quid pro quo discrimination or hostile work environment."4 Quid pro quo sexual harassment occurs when the employee must submit to unwelcome sexual favors in order to gain some economic or employment benefit. The employee must give something for something hence the Latin title "quid pro quo."5 Hostile work environment sexual harassment occurs when conduct at the workplace has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.6

In quid pro quo actions the complaining party must show that submission to the unwelcome sexual advances of supervisory personnel was an express or implied condition for receiving job benefits or that a tangible job detriment resulted from the employee's failure to submit to the sexual demands of supervisory employees.7 In other words, there can be no quid pro quo basis for a sexual harassment cause of action if the alleged harasser did not have supervisory authority over the alleged victim. Hostile work environment sexual harassment occurs when conduct at the workplace has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.8

The law seems relatively clear. Quid pro quo causes of action are somewhat straightforward - did someone with supervisory control suggest a trade, the declination of which would result in the supervised employee suffering administrative harm or inequity? If so, there is most likely a quid pro quo basis to bring an action. Surely, in the 21st Century, employers, managers, and supervisors are educated enough to avoid advancing such a crass proposition. Thus, the real fountain of litigation will likely flow from within the hostile work environment rubric.

The United States Supreme Court has held that ". . . a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so."9 Moreover, "[t]he conduct must be both objectively and subjectively abusive, and need not lead to a nervous breakdown before Title VII comes into play."10 The high court determined the appropriate litmus test to determine if an environment is sufficiently hostile or abusive to support a sexual harassment claim requires the finder of fact to look at all the circumstances, "...including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and, whether it unreasonably interferes with an employee's work performance."11

Much to the dismay of employers, an employer may be held vicariously liable for a hostile work environment created by either co-workers or customers.12 To be held liable for such conditions, however, management level employees of the employer must have had knowledge of such hostile acts and failed to remedy or prevent it.13 Generally speaking, a franchisor will not be considered the employer of an individual working at a franchised store so long as there is no common management, no centralized control of labor relations, and no common ownership or financial control.14

The U.S. Supreme Court has also held that Title VII does not prohibit ". . . genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex."15 Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.16

An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it.17 The question then becomes: What can an employer do to insulate itself from vicarious liability of a manager or supervisor who may act inappropriately? The United States Supreme Court has answered that question: "When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence."18 "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."19

Employers, of course, want to know what records or other documents will best support a successful defense. The U.S. Supreme Court makes clear that a written policy and a procedure for documenting employee elections under that policy can be an employer safe harbor:

Accordingly, a written policy is helpful but is not an employer's bulletproof shield to sexual harassment claims. Moreover, if a policy is in place and the employer fails to observe its own policy, a sharp Plaintiff's lawyer would, no doubt, make great judicial hay with any such failed compliance.

In order to establish a hostile work environment the employee must subjectively perceive the harassment as sufficiently severe and pervasive to alter the terms or conditions of employment, and this subjective perception must be objectively reasonable.21 The law prohibits only that behavior ". . . so objectively offensive as to alter the 'conditions' of the victim's employment."22 That requirement is crucial to ". . . ensure that courts and juries do not mistake ordinary socializing in the workplace - such as male-on-male horseplay or inter sexual flirtation - for discriminatory 'conditions of employment.'"23

The court specifically held that the conduct complained of by Mendoza, even when viewed in the light most favorable to her, did not establish evidence of a physical threat or humiliation.24 The Court specifically held that ". . . the sniffing sounds are hardly threatening or humiliating." Surprisingly, the Court held ". . . the conduct alleged by Mendoza falls well short of the level of either severe or pervasive conduct sufficient to alter Mendoza's terms or conditions of employment."25 This holding seems inconsistent with the Supreme Court's pronouncements, supra. Perhaps the 11th Circuit believed that Ms. Mendoza's supervisor was merely "socializing in the workplace" or engaging in "inter sexual flirtations." As surprising as the 11th Circuit's decision in Mendoza seems, and no matter how much objurgation such conduct may invoke from individuals apparently more rectitudinous than those on the 11th Circuit bench, one can reasonably opine that it is a signal the courts are placing more emphasis on "threatening" rather than "offensive" conduct in order to determine if a hostile work environment has been created.

Approximately two years before Mendoza, in Sprague v. Thorn Americas, Inc.,26 the 10th Circuit held that five sexually-oriented, offensive statements over sixteen (16) months were insufficient to establish a hostile work environment. Sprague alleged, inter alia, that she entered the office of her supervisor, Kowalski, and he said to her, "Shelley, you really need to undo that top button."27 Another alleged incident occurred at Sprague's wedding reception, when Kowalski allegedly put his arm around Sprague, looked down her dress and said, "well, you got to get it when you can." Nonetheless, and at least in part based upon the fact that the second, and what the court referred to as "the most serious"28, alleged offense was not in the work place, the 10th Circuit held that "Sprague did not proffer evidence of sexual harassment sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment."29 Thus, the 10th Circuit helped to establish the emerging trend of trying to filter out of the litigation stream those claims based upon acts or comments that, while offensive, are not threatening. Regrettably, the decisions in Sprague and Mendoza may encourage a supervisor or employer lacking the typical level of probity found in Oklahoma to deductively conclude that, at least in the 10th and 11th Circuits, otherwise offensive conduct is legally permissible so long as it only involves touching of another while outside of the physical work place and/or actions in the work place that do not include words.

In summary, while the law is designed to protect would-be-victims (even from same sex sexual harassment30) there must be a balancing of interests. Courts have trended toward drawing the balanced line between threatening and/or humiliating behavior and behavior that is merely offensive for at least the last five years (see Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996), holding that sexually-oriented jokes are the kind of non-threatening 'utterance" that cannot alone support hostile environment claims). While a bit alarming, this trend should give employers some comfort that successful litigation will not likely result from the most simple and unintentional office utterances. At the same time, this employer friendly trend will likely cause a salubrious reduction in employee angst about whether or not an intended joke will result in sudden career death. However, the danger in the current trend is that human nature dictates such a policy will unavoidably be taken as a green light by some individuals to bring their sexual proclivities to work; and, ultimately, the inappropriate conduct of a minority within the work force will likely force the courts to craft a test with a smaller screen in order to preclude victimization that cannot be clearly articulated or easily proven. In the meantime, employers should bask in the easy days of strong defense to vicarious liability for acts of those employees who are less responsible than would make their parents proud.

As employers grapple with this issue and seek sagacious policies to withstand the legal tests, which, at the moment seem to be shifting in the jurisprudential sands, the simplest of all tests should be adopted: the "Reasonably Prudent Mother" test. If a comment, joke or action would be frowned upon when stated or conducted in front of the reasonably prudent mother, then it probably should be avoided - no matter what the "law" allows.

1. Mendoza v. Borden, Inc. 195 F.3d 1238 (11th Cir. 1999).
2. Id., at 1247.
3. Long v. Eastfield College, 88 F.3d 300 (5th Cir. 1996); Sprague v. Thorn Americas, Inc. 129 F.3d. 1355 (10th Cir. 1997).
4. Marshall v. OK Rental & Leasing, Inc., d/b/a Dollar Rent-A-Car, 939 P.2d 1116, 1119, 1997 OK 34; overruled on other grounds (". . . to the extent that Marshall can be read to support the conclusion that the Oklahoma Anti-Discrimination Act provides an adequate remedy for quid pro quo sexual harassment [See Marshall, supra note 2 at 1121], it is disapproved)." Collier v. Insignia Financial Group, 981 P.2d 321, 326, at footnote 20, 1999 OK 49).
5. Id.
6. Id., at 1120 (see also Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.; and, 25 Okl.St.Ann. § 1101 et seq). It should also be noted that Oklahoma's Anti-Discrimination Act, 25 Okl.St.Ann. § 1101 et seq., does not apply to employers with less than 15 employees. Brown v. Ford, 905 P.2d 223, 227, 1995 OK 101.
7. Marshall v. OK Rental & Leasing, Inc., d/b/a Dollar Rent-A-Car, 939 P.2d 116, 1119, 1997 OK 34.
8. Id., at 1119.
9. Faragher v. City of Boca Raton, 118 S.Ct. 2275, 2283 (1998).
10. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1071 (10th Cir. 1998).
11. Id.
12. Id., at 1074.
13. Id.
14. Id., at 1089. See also Scales v. Sonic Industries, Inc., 887 F.Supp. 1435 (E.D. OK, 1995), in support of the proposition that, absent common management, centralized control, and/or common ownership or financial control, a franchisor is not the employer of an individual working at a franchised store.
15. Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998, 1003 (1998).
16. Faragher v. City of Boca Raton, 118 S.Ct. 2275, 2283 (1998).
17. Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257, 2267 (1998).
18. Id., at 2270.
19. Id.
20. Id.
21. Mendoza v. Borden, Inc. 195 F.3d 1238, 1246 (11th Cir. 1999).
22. Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998, 1003 (1998).
23. Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257, 2267 (1998).
24. Mendoza v. Borden, Inc., 195 F.3d 1238, 1247-1248 (11th Cir. 1999).
25. Id., at 1247.
26. Sprague v. Thorn Americas, Inc. 129 F.3d. 1355, 1365-1366 (10th Cir. 1997).
27. Id., at 1366.
28. Id.
29. Id.
30. "If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination 'because of ... sex' merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex." Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998, 1001-1002 (1998).

MICHAEL E. CHIONOPOULOS graduated with a J. D. from OCU in 1992. In 1988 he graduated cum laude from Midwestern State University with a B.A. in political science. Formerly with the Oklahoma City firm of Abowitz, Rhodes & Dahnke, where he engaged in general civil practice, Mr. Chionopoulos currently serves as senior vice president and general counsel to CD Warehouse Inc. He also currently serves as the deputy staff judge advocate officer in the 45th Infantry Brigade, headquartered in Oklahoma City, and has served as both an armor officer and infantry officer and commanded an infantry company. He is chairperson of the OBA House Counsel Section.