Sexual Harassment: Developments in Federal Law

Sexual Harassment:
Developments in Federal Law
Updated November 26, 2008
Jody Feder
Legislative Attorney
American Law Division

Sexual Harassment: Developments in Federal Law
Gender-based discrimination, sexual harassment, and violence against women
in the workplace, schools, and society at large are continuing topics of legislative and
judicial concern. Legal doctrines condemning the extortion of sexual favors as a
condition of employment or job advancement and other sexually offensive workplace
behaviors resulting in a “hostile environment” have evolved from judicial decisions
under Title VII of the 1964 Civil Rights Act and other federal equal employment
opportunity laws. The earlier judicial focus on economic detriment or quid pro quo
harassment — i.e., making submission to sexual demands a condition of job benefits
— has largely given way to Title VII claims alleging harassment that creates an
“intimidating, hostile, or offensive environment.” Under Title IX of the Education
Amendments of 1972, victims of sexual harassment that occurs in a public school
setting may make similar quid pro quo or hostile environment claims.
During the current 2008-2009 term, the Supreme Court is expected to rule in
two different sexual harassment cases, one involving the question of whether Title
IX provides the exclusive remedy for school sexual harassment lawsuits (Fitzgerald
v. Barnstable School Committee) and the other involving allegations of retaliation
(Crawford v. Metropolitan Government of Nashville and Davidson County). For
more information on related laws regarding sex discrimination, see CRS Report
RL30253, Sex Discrimination and the United States Supreme Court: Developments
in the Law, by Jody Feder.

In troduction ......................................................1
Federal Equal Employment Opportunity Law............................1
Quid Pro Quo Harassment...........................................4
Hostile Environment Harassment.................................8
Same-Sex Harassment.............................................12
Remedies .......................................................16
Liability of Employers and Supervisors for Monetary Damages.............19
Vicarious Employer Liability: the Ellerth/Faragher
Affirmative Defense.......................................19
Constructive Discharge........................................23
Personal Liability of Harassing Supervisors and Co-workers...........25
Retaliation ......................................................25
Sexual Harassment in the Schools....................................26

Sexual Harassment: Developments in
Federal Law
Gender-based discrimination, sexual harassment, and violence against women
in the workplace, schools, and society at large are continuing topics of legislative and
judicial concern. Legal doctrines condemning the extortion of sexual favors as a
condition of employment or job advancement and other sexually offensive workplace
behaviors resulting in a “hostile environment” have evolved from judicial decisions
under Title VII of the 1964 Civil Rights Act and other federal equal employment2
opportunity laws. The earlier judicial focus on economic detriment or quid pro quo
harassment — i.e., making submission to sexual demands a condition of job benefits
— has largely given way to Title VII claims alleging harassment that creates an
“intimidating, hostile, or offensive environment.” Under Title IX of the Education3
Amendments of 1972, victims of sexual harassment that occurs in a public school
setting may make similar quid pro quo or hostile environment claims.
In recent years, the U.S. Supreme Court has addressed a range of sexual
harassment issues, from the legality of same-sex harassment to the vicarious liability
of employers and local school districts for monetary damages as the result of
harassment by supervisors and teachers. These and other significant Supreme Court
cases regarding sexual harassment and violence against women are discussed below.
For more information on related laws regarding sex discrimination, see CRS
Report RL30253, Sex Discrimination and the United States Supreme Court:
Developments in the Law, by Jody Feder.
Federal Equal Employment Opportunity Law
Title VII of the 1964 Civil Rights Act does not mention sexual harassment but
makes it unlawful for employers with 15 or more employees to discriminate against

1 This report is based on a report that was originally prepared by Charles V. Dale,
Legislative Attorney: CRS Report 98-34, Sexual Harassment and Violence Against Women:
Developments in Federal Law, by Charles V. Dale.
2 Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or
national origin. 42 U.S.C. §§ 2000e et seq.
3 Title IX prohibits sex discrimination in federally funded education programs or activities.

20 U.S.C. § 1681.

any applicant or employee “because of ... sex.”4 Federal law on the subject is,
therefore, largely a judicial creation, having evolved over four decades from federal
court decisions and guidelines of the Equal Employment Opportunity Commission
(EEOC) interpreting Title VII’s sex discrimination prohibition.5 Sexual harassment
in federally assisted education programs is also prohibited by Title IX of the 1972
Education Amendments.6 While Title VII and Title IX are the primary sources of
federal sexual harassment law, relief from such conduct has also been sought, albeit
less frequently, pursuant to § 1983 of Title 42, the Federal Employees Liability Act,
and the Equal Protection and Due Process Clauses of the U.S. Constitution.7
Two forms of sexual harassment have been recognized by the courts and EEOC
administrative guidelines. The first, or “quid pro quo” harassment, occurs when
submission to “unwelcome” sexual advances, propositions, or other conduct of a
sexual nature is made an express or implied condition of employment, or where it is
used as the basis of employment decisions affecting job status or tangible
employment benefits. As its name suggests, this form of harassment involves actual
or potential economic loss — such as termination, transfer, or adverse performance
ratings — as a consequence of the employee’s refusal to exchange sexual favors
demanded by a supervisor or employer for employment benefits. The second form
of actionable harassment consists of unwelcome sexual conduct that is of such
severity as to alter a condition of employment by creating an “intimidating, hostile,
or offensive working environment.” The essence of a “hostile environment” claim
is a “pattern or practice” of offensive behavior by the employer, a supervisor, co-
workers, or non-employees so “severe or pervasive” as to interfere with the
employee’s job performance or create an abusive work environment.
In 1980, the federal agency responsible for enforcing Title VII issued guidelines
prohibiting both quid pro quo and hostile environment sexual harassment.8 The
EEOC guidelines focus on sexuality rather than gender — in terms of job detriments
resulting from “[u]nwelcome sexual advances, requests for sexual favors, and other
verbal or physical behavior of a sexual nature” — and require that a “totality of the
circumstances” be considered to determine whether particular conduct constitutes
sexual harassment.9 In addition, the EEOC anticipated judicial developments in
hostile environment law when it eliminated tangible economic loss as a factor and
provided that unwelcome sexual conduct violates Title VII whenever it “has the
purpose or effect of unreasonably interfering with an individual’s work performance
or creating an intimidating, hostile, or offensive working environment.” According
to the EEOC guidelines, an employer is liable for both forms of sexual harassment
when perpetrated by supervisors. The employer, however, is liable for harassment

4 42 U.S.C. § 2000e-2(a)(1).
5 Id. at §§ 2000e et seq.
6 20 U.S.C. §§ 1681 et seq. See Franklin v. Gwinnet County Pub. Sch., 503 U.S. 60 (1992).
7 See, e.g., Doe v. Taylor Indep. Sch. Dist., 975 F.2d 137 (5th Cir. 1992).
8 For more details on agency guidance on sexual harassment, see the EEOC’s website at
[ h t t p : / / www.e e o c . go v] .
9 29 C.F.R. §1604.11(a).

perpetrated by co-worker or nonemployees only if the employer knew or should have
known of the harassment and failed to “take immediate and appropriate corrective
action.” They also recommend that employers take preventive measures to eliminate
sexual harassment and state that employers may be liable to those denied
employment opportunities or benefits given to another employee because of
submission to sexual advances.10
In 1990, the EEOC issued policy guidance to elaborate on certain legal
principles set forth in its interpretative guidelines from a decade before.11 First, the
later document reasserted the basic distinction between “quid pro quo” and “hostile
environment” and states that an employer “will always be held responsible for acts
of ‘quid pro quo’ harassment” by a supervisor while hostile environment cases
require “careful examination” of whether the harassing supervisor was acting in an
`agency capacity.’”12 On the “welcomeness” issue, the policy guide states that “a
contemporaneous complaint or protest” by the victim is an “important” but “not a
necessary element of the claim.” Instead, the Commission will look to all “objective
evidence, rather than subjective, uncommunicated feelings” to “determine whether
the victim’s conduct is consistent, or inconsistent, with her assertion that the sexual
conduct is unwelcome.”13 In determining whether a work environment is hostile,
several factors are emphasized:
(1) whether the conduct was verbal or physical or both; (2) how frequently it was
repeated; (3) whether the conduct was hostile or patently offensive; (4) whether
the alleged harasser was a co-worker or supervisor; (5) whether others joined in
perpetrating the harassment; and (6) whether the harassment was directed at
more than one individual.
However, because the alleged misconduct must “substantially interfere” with the
victim’s job performance, “sexual flirtation or innuendo, even vulgar language that
is trivial or merely annoying, would probably not establish a hostile environment.”
In addition, “the harasser’s conduct should be evaluated from the objective standard
of a ‘reasonable person.’”14
In 1999, the EEOC rescinded the employer liability rules of these earlier
documents, in line with the Faragher and Ellerth decisions discussed below. The
latest guidelines apply the same liability principles to all forms or illegal harassment
— whether based on race, color, sex, religion, national origin, age, or disability —
prohibited by federal anti-discrimination statutes.15 In terms of substantive scope, the

10 Id. at § 1604.11.
11 Equal Employment Opportunity Commission, Policy Guidance on Current Issues of
Sexual Harassment, March 19, 1990, at [
12 Id. at 405:6695.
13 Id. at 405:6686.
14 Id.
15 Equal Employment Opportunity Commission, Enforcement Guidance: Vicarious

guidance emphasizes that harassment targeted against an individual because of sex
need not involve sexual comments or conduct to be actionable. For example, the
EEOC states that frequent, derogatory remarks about women may constitute unlawful
harassment even if they are nonsexual in nature so long as they are sufficiently
pervasive and are directed only at female (or male) employees because of their sex.
Both the “supervisor” and “tangible employment action” necessary for imputing
vicarious employer liability are broadly defined. Thus, the former includes any
individual who has, or is regarded to have, the authority to affect an employee’s work
activities or status, whether directly or by recommendation to a final decision-maker.
The latter refers to any job detriment or benefit that results in significant change in
employment status (e.g., a pay raise in exchange for sexual favors), but an unfulfilled
threat by a supervisor is insufficient to be a “tangible employment action.”
In addition, the employer has a duty of “reasonable care” to prevent and remedy
harassment and, unless a very small employer, must establish, disseminate, and
enforce a formal anti-harassment policy and complaint procedure, among other steps.
Even an employer that promptly responds to a complaint has not taken reasonable
care if it ignored prior complaints by other employees, or if it fails to screen
supervisory applicants for any prior record of engaging in harassment. A harassment
victim, on the other hand, must take advantage of any policy and procedures provided
by the employer, and may be denied full monetary relief if she unreasonably delays
in complaining. An employee may reasonably be excused from complaining, or for
delay in doing so, only where there appears to be a risk of retaliation or other built-in
obstacles making the complaint mechanism ineffective.
Quid Pro Quo Harassment
The earliest judicial challenges involving tangible job detriment or quid pro quo
harassment claims — filed by women who were allegedly fired for resisting sexual
advances by their supervisors — were largely unsuccessful. The discriminatory
conduct in such cases was deemed to arise from “personal proclivity” of the
supervisor rather than “company directed policy which deprived women of
employment opportunities.” Until the mid-1970’s, federal district courts were
reluctant either to find a Title VII cause of action or to impose liability on employers
who were neither in complicity with, nor had actual knowledge of, quid pro quo
harassment by their supervisory employees. An historic turning point came when the
federal district court in Williams v. Saxbe held for the first time that sexual
harassment was discriminatory treatment within the meaning of Title VII because “it
created an artificial barrier to employment which was placed before one gender and
not the other, despite the fact that both genders were similarly situated.”16 Echoing
earlier opinions that an employer is not liable for “interpersonal disputes between
employees,” the court nonetheless refused to dismiss the complaint since “if [the

15 (...continued)
Employer Liability for Unlawful Harassment by Supervisors, June 18, 1999,
[ h t t p : / / www.e e o c . go v/ pol i c y/ doc s / ha r a s s me n t .ht ml ] .
16 413 F. Supp. 654, 657-58 (D.D.C. 1976).

alleged harassment] was a policy or practice of plaintiff’s supervisor, then it was the
agency’s policy or practice, which is prohibited by Title VII.”17
Appellate tribunals in several federal circuits soon began to affirm that quid pro
quo harassment violates Title VII where “gender is a substantial factor in the
discrimination,” reversing contrary lower court holdings. For example, in Barnes v.
Costle, the D.C. Circuit disagreed with “the notion that employment conditions
summoning sexual relations are somehow exempted from the coverage of Title
VII.”18 Finding that it was “enough that gender is a factor contributing to the
discrimination in a substantial way,” the court ruled that differential treatment based
upon an employee’s rejection of her supervisor’s sexual advances violated the statute.
Similarly, in Tomkins v. Public Service Electric & Gas Co., the Third Circuit
reversed the trial court’s denial of Title VII protection to all “sexual harassment and
sexually motivated assault,” finding that where an employee’s “status as a female
was a motivating factor in the supervisor’s conditioning her continued employment
on compliance with his sexual demands,” actionable quid pro quo harassment had
occurred. “[T]o establish a prima facie case of quid pro quo harassment, a plaintiff
must present evidence that she was subject to unwelcome sexual conduct, and that
her reaction to that conduct was then used as the basis for decisions affecting the
compensation, terms, conditions, or privileges of her employment.”19
Where the conduct of the alleged harasser is motivated by factors other than the
sex of the plaintiff, however, there may be no quid pro quo harassment. So-called
“paramour” cases are a prime example. In Piech v. Arthur Anderson & Co.,20 the
court held that the plaintiff’s inability to obtain a promotion, given instead to a
female co-worker who was romantically involved with the employer, did not result
from sex discrimination since all other employees, male or female, were equally
affected. In contrast, the claim that females employed by the defendant had to extend
sexual favors to succeed was cognizable as quid pro quo harassment. Ellert v.
University of Texas similarly held that a secretary could not establish a quid pro quo
harassment claim by alleging that her discharge resulted from her knowledge of the
university dean’s unwelcome advances towards an associate.21 Even if the plaintiff’s
knowledge of the affair was the basis of action taken against her, it was not motivated
by her gender and thus was not prohibited by Title VII.
While the loss of a “tangible employment benefit” has most often meant
dismissal or demotion, quid pro quo claims may also arise from denial of career
advantages — job title, duties, or assignments — of less immediate economic impact
upon the employee. The Seventh Circuit, for example, has ruled that a tenured
professor who was allegedly stripped of her job title and removed from academic
committees because she rebuffed the sexual advances of the university provost may

17 Id. at 660-61.
18 561 F.2d 983 (D.C.Cir. 1977).
19 Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir.), cert. denied 512 U.S. 1213
20 841 F.Supp 825 (N.D. Ill. 1994).
21 52 F.3d 543 (5th Cir. 1995).

have a claim for quid pro quo sexual harassment under Title VII.22 By contrast, the
Fourth Circuit vacated a judgment in favor of the plaintiff in Reingold v. Virginia,23
concluding that assigning her extra work, giving her inappropriate work assignments
not included in her job description, and denying her the opportunity to attend a
professional conference, did not amount to a “significant change in employment
status.” Generally speaking, the more remote or insubstantial the consequences of
refusing a supervisor’s unwelcome advances, the less likely that prerequisites for a
quid pro quo will be found.24
The dismissal by Judge Susan Weber Wright of Paula Jones’ sexual harassment
lawsuit against former-President Clinton squarely addressed the workplace
consequences that must flow from the refusal to submit to an unwelcome sexual
advance for the court to find actionable harassment.25 Plaintiff Jones claimed that her
career advancement had repeatedly been thwarted by her state employer as retribution
for rebuffing the former Arkansas Governor. As evidence of “tangible job
detriments,” Jones alleged that she had been discouraged by supervisors from seeking
job promotions or pay increases; that following return from maternity leave, she was
transferred to a new position with fewer responsibilities; that she was effectively
denied access to grievance procedures available to other sexual harassment victims;
and that by physically isolating her directly outside her supervisor’s office with little
work to do, she was “subjected to hostile treatment having tangible effects.” Judge
Wright was unconvinced by the record, however, that any threat perceived by Jones
during her alleged hotel meeting with the former Governor was so “clear and
unambiguous” as to be a quid pro quo conditioning of “concrete job benefits or
detriments on compliance with sexual demands.” “Refusal” cases like Jones, calling
for proof of “tangible job detriment” by plaintiffs who resist unwelcome sexual
demands,26 were distinguished from so-called “submission” cases, where “in the
nature of things, economic harm will not be available to support the claim of the
employee who submits to the supervisor’s demands.”27
It was widely anticipated that some further guidance on the essential character
of quid pro quo harassment, particularly in relation to Jones’ claims against President
Clinton, would be forthcoming when the Supreme Court decided Burlington
Industries, Inc. v. Ellerth.28 That case involved a former merchandising assistant at
Burlington Industries who alleged that she was the subject of repeated boorish and

22 Bryson v. Chicago State Univ., 96 F.3d 912 (7th Cir. 1996). See also Durham Life Ins. Co.
v. Evans, 166 F.3d 139, 153 (3d Cir. 1999).
23 151 F.3d 172, 175 (4th Cir. 1998).
24 See Webb v. Cardiothoracic Surgery Assoc., 139 F.3d 532, 539 (5th Cir. 1998).
25 Jones v. Clinton, 16 F. Supp. 2d 1054 (E.D.Ark. 1998).
26 E.g., Cram v. Lamson & Sessions Co., 49 F.3d 466 (8th Cir. 1995); Sanders v. Casa View
Baptist Church, 134 F.3d 331, 339 (5th Cir. 1998); Gary v. Long, 59 F.3d 1391, 1396 (D.C.
Cir. 1995).
27 Karibian v. Columbia Univ., supra n. 19. See also Jansen v. Packaging Corp of Am., 123
F.3d 490 (7th Cir. 1997).
28 524 U.S. 742 (1998).

offensive comments and gestures by a division vice-president who implied that her
response to his advances would affect her career. Ellerth detailed three incidents in
which her supervisor’s comments could be construed as threats to deny her tangible
job benefits. A short time later, she quit her job without informing anyone in authority
about the harassment, even though she was aware of Burlington’s anti-harassment
policy. Squarely presented by Ellerth, therefore, was the question of whether sexual
advances by a supervisor accompanied by the threatened but not actualized loss of
employment or job benefits may render an employer liable for quid pro quo
In fashioning an employer liability rule in Ellerth, the Court considered the
judicial distinction between quid pro quo and environmental harassment to be less
important than whether the claim involved a threat that had been “carried out” in
fact.29 Such actions, according to the Court, include instances where the subordinate
employee is subjected to “a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits” for failing to permit sexual
liberties.30 Claims based on unfulfilled threats of retaliation were equated by the Court
to hostile environment harassment, requiring plaintiff to prove “severe and pervasive”
Since Ellerth had not demonstrated that she was the victim of retaliation by her
supervisor — in fact, she had been promoted during the period in question — there
was no tangible detriment for which the employer could be held strictly liable. The
case was remanded, however, for application of an alternative standard of vicarious
employer liability formulated by the Court for supervisory harassment cases not
involving a “tangible employment action.” Under that rule, after the plaintiff proves
that the supervisory misconduct is both “severe and pervasive,” the employer may
assert as an “affirmative defense” that its actions to prevent and remedy workplace
harassment were “reasonable,” while the plaintiff “unreasonably” failed to take
advantage of any anti-harassment policies and procedures of the employer. Ellerth’s
failure to avail herself of the employer’s grievance procedure likely defeated any Title
VII recovery against Burlington under the second prong of this defense. The judicial
task for lower courts after Ellerth is to construe this duty of reasonable care governing
the employer’s affirmative defense to liability. Other than rewarding employers for
prophylactic measures aimed at workplace harassment and compelling victim
participation in those efforts, Ellerth provides little specific guidance.

29 Under common law agency principles, the majority reasoned, an employer is generally
immune from liability for the tortious conduct of its agent (the harassing supervisor in
Ellerth), which is deemed to be “outside the scope of employment,” unless the wrongdoer
is “aided” in the harassment by “the existence of the agency relation.” The “aided in the
agency relation standard” differentiates supervisory harassment for which an employer may
be automatically liable from similar acts committed by mere co-workers. And it is most
clearly satisfied in those cases where the harassment culminates in a “tangible employment
30 Ellerth, 524 U.S. 761.

Hostile Environment Harassment
The earlier judicial focus on economic detriment or quid pro quo harassment —
making submission to sexual demands a condition to job benefits — largely gave way
to Title VII claims for harassment that create an “intimidating, hostile, or offensive
environment.” The first federal appellate court to jettison the tangible economic loss
requirement and recognize a hostile environment claim of sexual harassment was the
D.C. Circuit in Bundy v. Jackson.31 Despite the plaintiff’s failure to prove quid pro
quo harassment — she was not fired, demoted, or denied a promotion — the court
refused to permit an employer to lawfully harass an employee “by carefully stopping
short of firing the employee or taking any other tangible actions against her in
response to her resistance.”32 Another decision important to the judicial development
of sexually hostile environment law was Henson v. Dundee, in which the Eleventh
Circuit rejected a claim of quid pro quo harassment but found that the employee had
a right to a trial on the merits to determine whether the misconduct alleged made her
job environment hostile.33
In Meritor Savings Bank v. Vinson,34 the Supreme Court ratified the consensus
then emerging among the federal circuits by recognizing a Title VII cause of action
for sexual harassment. According to the Court, a “hostile environment,” predicated
on “purely psychological aspects of the workplace environment,” could give rise to
legal liability, and “tangible loss” of “an economic character” was not an essential
element.35 This holding was qualified by the Court with important reservations drawn
from earlier administrative and judicial precedent. First, “not all workplace conduct
that can be described as ‘harassment’ affects a term, condition, or privilege of
employment within the meaning of Title VII.” For example, the “mere utterance” of
an “epithet” engendering “offensive feelings in an employee” would not ordinarily be
per se actionable, the opinion suggests. Rather, the misconduct “must be sufficiently

31 641 F.2d 934 (1981).
32 Id. at 945.
33 682 F.2d 897 (11th Cir. 1982). In an oft-quoted passage from its opinion, the court stated:
Sexual harassment which creates a hostile or offensive environment for members
of one sex is every bit the arbitrary barrier to sexual equality at the workplace
that racial harassment is to racial equality. Surely, a requirement that a man or
woman run a gauntlet of sexual abuse in return for the privilege of being allowed
to work and make a living can be as demeaning and disconcerting as the harshest
of racial epithets. A pattern of sexual harassment inflicted upon an employee
because of her sex is a pattern of behavior that inflicts disparate treatment upon
a member of one sex with respect to terms, conditions, or privileges of
employment. There is no requirement that an employee subjected to such
disparate treatment prove in addition that she suffered tangible job detriment. Id.
at 902.
34 477 U.S. 57 (1986).
35 Id. at 58.

severe or pervasive to alter the conditions of [the victim’s] employment and create an
abusive working environment.”36
Second, while “voluntariness” in the sense of consent is not a defense to a sexual
harassment charge,
[t]he gravamen of any sexual harassment claim is that the alleged sexual advances
were ‘unwelcome.’ ... The correct inquiry is whether respondent by her conduct
indicated that the alleged sexual advances were unwelcome, not whether her37
actual participation in sexual intercourse was voluntary.
Accordingly, “it does not follow that a complainant’s sexually provocative speech or
dress is irrelevant as a matter of law in determining whether he or she found particular
sexual advances unwelcome. To the contrary, such evidence is obviously relevant.”38
On the question of employer liability, the Meritor Savings majority held that the
court below had “erred in concluding that employers are always automatically liable
for sexual harassment by their supervisors.”39 The usual rule in Title VII cases is strict
liability, and four Justices, concurring in the judgment, argued that the same rule
should apply in the sexual harassment context as well. The majority disagreed,
impliedly suggesting that in hostile environment cases no employer, at least none with
a formal policy against harassment, should be made liable in the absence of actual or
constructive knowledge.
The Supreme Court’s failure to clearly define what constitutes a hostile
environment in Meritor Savings led to frequent conflict in the lower courts,
particularly as to the necessity of proving that serious psychological injury resulted
from the harassing conduct.40 The Court’s decision in Harris v. Forklift Systems, Inc.41
revisited and offered some clarification of Meritor Savings in this regard. In Harris,
a company president had subjected a female manager to sexual innuendo, unwanted
physical touching, and insults because of her gender. After two years, she left the job.

36 Id. at 62 (quoting Henson v. Dundee), supra n. 33 at 904. In Meritor Savings the
complainant alleged that her supervisor demanded sexual relations over a three-year period,
fondled her in front of other employees, followed her into the women’s restroom and
exposed himself to her, and forcibly raped her several times. She claimed she submitted for
fear of jeopardizing her employment. During the period she received several promotions
which, it was undisputed, were based on merit alone so that no exchange of job
advancement for sexual favors (quid pro quo harassment) was alleged or found.
37 Id. at 68 (citing 29 C.F.R. § 1604.11(a)(1985)).
38 Id. at 69.
39 Id. at 72.
40 Compare Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986); Scott v. Sears
Roebuck, 798 F.2d 210 (7th Cir. 1986); and Brooms v. Regal Tube, 830 F.2d 1554 (11th Cir.

1987) with Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir 1990); Burns

McGregor Electronic Indus., Inc., 955 F.2d 559 (8 Cir. 1992); and Ellison v. Brady, 924th
F.2d 872 (9 Cir. 1991).
41 510 U.S. 17 (1993).

In its decision, the Supreme Court decided that hostile environment sexual harassment
need not “seriously affect psychological well-being” of the victim before Title VII is
violated. According to the Court, Meritor Savings had adopted a “middle path”
between condemning conduct that was “merely offensive” and requiring proof of
“tangible psychological injury.” Thus, a hostile environment is not created by the
“‘mere utterance of an ... epithet which engenders offensive feelings in an employee.’”
On the other hand, a victim of sexual harassment need not experience a “nervous
breakdown” for the law to come into play. “So long as the environment would
reasonably be perceived, and is perceived, as hostile or abusive, there is no need for
it also to be psychologically injurious.”42
Harris also addressed the standard of reasonableness to be applied in judging
sexual harassment claims, another issue dividing the lower federal courts. The Court
opted for a two-part analysis, both components of which must be met for a violation
to be found. First, the conduct must create an objectively hostile work environment
— “an environment that a reasonable person would find hostile and abusive.”
Second, the victim must subjectively perceive the environment to be abusive. The
“totality of circumstances” surrounding the alleged harassment are to guide judicial
inquiry, 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.”43
Since Meritor Savings and Harris, a broad range of hostile environment harms
— frequently as concerned with lewd comments, inquiries, jokes, or displays of
pornographic materials in the workplace as with overt sexual aggression — have been
brought before the federal courts. Robinson v. Jackson Shipyards, Inc.44 was among
the first reported decisions to impose liability for sexual harassment based on the
pervasive presence of sexually oriented materials — magazine foldouts or other
pictorial depictions — and “sexually demeaning remarks and jokes” by male co-
workers without allegations of physical assaults or sexual propositions directed at the
plaintiff. Most courts, however, have limited recovery to cases involving repeated
sexual demands or other offensive conduct.45 Except for cases involving touching or
extreme verbal behavior, courts are often reluctant to find that sexual derision — or
claims against pornography in the workplace — is sufficient to create a hostile
environment when unaccompanied by sexual demands.46 The First Amendment has
even been invoked to curb harassment claims founded solely on verbal insults or
pictorial or literary matter, as impermissible content-based restrictions on free

42 Id. at 21-22.
43 Id. at 22-23.
44 760 F. Supp. 1486 (M.D.Fla. 1991).
45 E.g. Highlander v. K.F.C. Nat’l Mgmt. Co., 805 F. 2d 644 (6th Cir. 1986); Waltman v. Int’l
Paper Co., 875 F.2d 468, 475 (5th Cir. 1989); King v. Bd. of Regents, 898 F.2d 533, 537 (7th
Cir. 1990). But cf. Vance v. Southern Tel. & Tel. Co., 863 F.2d 1503, 1510 (llth Cir. 1989).
46 E.g. Cowan v. Prudential Ins. Co. of Am., 141 F.3d 751, 758 (7th Cir. 1998); Hall v. Gus
Constr/ Co., 842 F.2d 1010, 1017 (8th Cir. 1988); Jones v. Flagship Int’l, 793 F.2d 714 (5th
Cir. 1986), cert. denied, 479 U.S. 1065 (1987).

speech.47 This tendency may be reinforced by the Court’s admonition in Oncale that
Congress never intended Title VII to become a general “code of civility.” Conduct
need not be overtly sexual, however, as other hostile conduct directed against the
victim because of the victim’s sex is also prohibited.48 And, in line with Meritor
Savings, evidence of a sexual harassment claimant’s own provocative behavior or
prior workplace conduct is generally relevant to a judicial determination of whether
the defendant’s conduct was unwelcome.49
Likewise, claims involving isolated or intermittent incidents have frequently been
dismissed as insufficiently pervasive. A recurring point in the decisions is that “simple
teasing, offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the ‘terms and conditions of employment.’”50 In
Jones v. Clinton, for example, the court ruled that considering the “totality of the
circumstances,” an alleged hotel incident and other encounters between Paula Jones
and former President (then-Governor) Clinton were not “the kind of sustained and
nontrivial conduct necessary for a claim of hostile work environment.”51 In particular,
the court noted that plaintiff Jones “never missed a day of work” because of the
incident nor did she complain to her supervisors; never did she seek medical or
psychological treatment as a consequence of alleged harassment; and that her
allegations generally failed to demonstrate any adverse workplace effects. The
Seventh Circuit, in another case, concluded that while an Illinois state employee
“subjectively perceived her work environment to be hostile and abusive” the paucity
of sexually oriented comments complained of — three suggestive comments by a co-
worker over a three-month period — “were not sufficiently severe that a reasonable
person would feel subjected to a hostile working environment.”52 Of course, a single
incident may be actionable if it is linked to a granting or denial of an employment

47 E.g. DeAngelis v. El Paso Officers’ Ass’n, 51 F.3d 596 (5th Cir. 1995); Johnson v. County
of Los Angeles Fire Dep’t, 865 F. Supp, 1430, 1440 (C.D.Cal. 1994). But cf. O’Rourke
City of Providence, 235 F.3d at 735-36; Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4

121 (1999), cert. denied, 529 U.S. 1138 (2000).

48 See Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir. 1999); Andrews v. City of
Philadelphia, 898 F.2d 1469, 1485 (3d Cir. 1990); Bell v. Crackin Good Bakers, Inc., 777th
F.2d 1497, 1503 (11 Cir. 1985); McKinney v. Dole, 765 F.2d 1129, 1138 (D.C.Cir. 1985).
But cf. Brown v. Henderson, 257 F.3d 246 (2d Cir. 2001).
49 See, e.g., Jones v. Wesco Inv. Inc., 846 F.2d 1154 n.5 (8th Cir. 1988); Swentek v. USAIR,
Inc., 830 F.2d 552, 556 (4th Cir. 1987).
50 Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001). See also Scusa v. Nestle USA
Co., 181 F.3d 958 (8th Cir. 1999); Lam v. Curators of the Univ. of Mo., 122 F.3d 654, 656-thth

57 (8 Cir. 1997); Sprague v. Thorn Am., Inc, 129 F.3d 1355, 1366 (7 Cir. 1997); Saxtonth

v. Am. Tel. & Tel. Co., 10 F.3d 526, 534 (7 Cir. 1993); Chamberlin v. 101 Realty, 915 F.2d

777 (lst Cir. 1990); Drinkwater v. Union Carbide Corp., 904 F.2d 853 (3d Cir. 1990); Ebertth

v. Lamar Truck Plaza, 878 F.2d 338 (10 Cir. 1989).
51 Jones v. Clinton, 990 F. Supp. 657, 675-76 (D. Ark. 1998).
52 McKensie v. Illinois Dep’t of Transp., 92 F.3d 473, 478 (7th Cir. 1996). See also Butler
v. Ysleta Indep. Sch. Dist., 161 F.3d 263 (5th Cir. 1998); Penry v. Fed. Home Loan Bank ofth
Topeka, 155 F.3d 1257 (10 Cir. 1998). But cf. Abeita v. TransAm. Mailings, 159 F.3d 246th
(6 Cir. 1998).

benefit (quid pro quo harassment), or if the incident involves physical assault or other
exceptional circumstances.53 The EEOC policy statement also states that the agency
“will presume that the unwelcome, intentional touching of a charging party’s intimate
body areas is sufficiently offensive to alter the conditions of her working environment
and constitute a violation of Title VII.”54
Same-Sex Harassment
Title VII was interpreted early on by the courts and the EEOC to protect both
men and women against workplace sexual harassment by the opposite sex. In Meritor
Savings, the Court found that Congress intended “to strike at the entire spectrum of
disparate treatment of men and women” in employment and read Title VII to prohibit
discriminatory harassment by a supervisor “because of the subordinate’s sex.” Until
the Supreme Court decision in Oncale v. Sundowner Offshore Services, Inc., however,
federal courts were sharply divided over whether the act applied when the harasser and
the victim are of the same sex. Although Title VII does not prohibit direct55
discrimination by an employer based on an employee’s sexual orientation — whether
homosexual, bisexual, or heterosexual — several federal appellate and trial courts
found that same-sex harassment was actionable in some circumstances. In effect,
“because of” sex in Title VII reached all disparate treatment based on the sex or56
gender of the employee, without regard to whether the harasser is male or female.
The Fifth Circuit, on the other hand, concluded that same-sex harassment could never57
form the basis of a Title VII claim.
In Oncale v. Sundowner Offshore Services, Inc., the U.S. Supreme Court agreed
with the majority view of the federal courts 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 the58
same sex.” The case involved quid pro quo and hostile environment claims of a male
offshore oil rig worker who alleged that he was sexually assaulted and abused by his
supervisor and two male co-workers, forcing him to quit his job. Although the Court
acknowledged that Congress was “assuredly” not concerned with male-on-male sexual

53 E.g. Howley v. Town of Stratford, 217 F.3d 148 (2d Cir. 2000); Davis v. U.S. Postal
Service, 142 F.3d 1334 (10th Cir. 1998); Crisonino v. New York City Hous. Auth., 985 F.
Supp. 385 (S.D.N.Y. 1997).
54 Equal Employment Opportunity Commission, Policy Guidance on Current Issues of
Sexual Harassment, March 19, 1990, at [
55 Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017
56 See, e.g., Yeary v. Goodwill Indus.- Knoxville, Inc., 107 F.3d 443 (6th Cir. 1997);
Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir. 1995); Quick v. Donaldson Co.,th

90 F.3d 1372 (8 Cir. 1996).

57 Garcia v. Elf Atochem N. Am., 28 F.3d 449 (5th Cir. 1994).
58 523 U.S. 75, 79 (1998).

harassment when it enacted Title VII, it found no justification in the statutory
language or the Court’s precedents for excluding same-sex harassment claims from
the coverage of Title VII. The opinion for the Court is notable for its emphasis on
general sexual harassment principles, possibly paving the way for stricter scrutiny of
sexual harassment claims in general. First, the opinion observes that federal
discrimination laws do not prohibit “all verbal or physical harassment in the
workplace,” only conduct that is discriminatory and based on sex. Moreover,
harassing or offensive conduct “is not automatically discrimination because of sex,
merely because the words used have a sexual content or connotation.” Instead, the
Court emphasized, those alleging harassment must prove that the conduct was not just
offensive, but “actually constituted” discrimination.59 Second, reiterating Meritor
Savings and Harris, only conduct so “severe or pervasive” and objectively offensive
as to alter the conditions of the victim’s employment is actionable so that “courts and
juries do not mistake ordinary socializing in the workplace — such as male-on-male
horseplay or intersexual flirtation — for discriminatory `conditions of
employment.’”60 Another moderating aspect of the Oncale ruling is the Court’s
obvious concern for “social context” and workplace realities when appraising all
sexual harassment claims — same-sex or otherwise.61
The full implications of Oncale for same sex harassment and hostile environment
cases remain largely unsettled. The Court clearly reinjected the element of
discrimination — “because of sex” — back into harassment law, perhaps tempering
a tendency on the part of some lower courts to equate offensive behavior with a hostile
environment without more. Indeed, the opinion states that “Title VII does not prohibit
all verbal or physical harassment” and “requires neither asexuality or androgyny in the
workplace.” Because little guidance was offered, however, for determining when
untoward conduct crosses the line to sex-based discrimination, lower court have been
left to grapple with the issue. The Court’s opinion suggests two possible approaches
to demonstrating a nexus between sexually offensive conduct and gender
A trier of fact might reasonably find such discrimination, for example, if a female
victim is harassed in such sex-specific and derogatory terms by another woman
as to make it clear that the harasser is motivated by general hostility to the
presence of women in the workplace. A same-sex harassment plaintiff may also,
of course, offer direct comparative evidence about how the alleged harasser
treated members of both sexes in a mixed-sex workplace.
It is difficult, however, to discern how either approach would aid male same-sex
plaintiffs like Oncale in proving discrimination “because of sex” when they are
victims of harassment by other males on an oil rig or in other male-dominated
The Oncale ruling also marked a general tempering of earlier decisions driving
current trends in sexual harassment litigation. The numerous examples cited by the

59 Id. at 80-81.
60 Id. at 81.
61 Id. at 81-82.

Court of “innocuous differences” in the way men and women interact might serve as
the basis for future judicial acceptance of a wider latitude of behavior in the workplace
than might otherwise have been considered permissible. The lengths to which the
opinion seems to go in articulating the bounds of permissible heterosexual behavior
in a same-sex harassment case reinforces this conclusion. Thus, the express approval
of “intersexual flirtation” and “teasing or roughhousing” implies that a certain level
of fraternization in the workplace is permissible and the consequent range of
actionable conduct correspondingly reduced. In this regard, the decision’s emphasis
upon “social context” may complicate the already difficult judicial task of identifying
a sexually hostile work environment. Does this mean, for example, that conduct
permitted in a blue-collar workplace may be actionable in a white-collar, professional
environment? Thus, the decision might lead to the dismissal of cases the courts have
entertained in the past. At the very least, beyond its threshold endorsement of a same-
sex cause of action under Title VII, the Oncale decision appears to raise as many
questions as it answers.
Lower courts have offered answers to some of those questions. As Oncale
emphasizes, the object of Title VII is elimination of discrimination “because of sex.”
Thus, inappropriate conduct that targets both sexes, or is inflicted regardless of sex,
is not covered. The statute does not reach the “equal opportunity” or “bisexual”
harasser who treats male and female employees the same, however inappropriately.62
Harassment is “because of” sex only if the gender of the victim is the motivating or
“but for” cause of the offensive conduct.63 That offensive workplace conduct may be
more offensive — or have a disparate impact — on female than male employees may
not suffice if an intention to discriminate is lacking.64 For example, in Kestner v.
Stanton Group, Inc.,65 a female employee complained about a male manager’s abusive
demeanor and constant yelling. Although the manager had also made several sexually
suggestive and crude remarks that were gender-specific, the Sixth Circuit concluded:
“That [the manager] yelled at employees, male and female, and that he cursed in front
of employees, male and female, does not by itself create a hostile work
Similarly, the courts have generally reiterated the position that Title VII provides
no remedy to a person claiming harassment at the hands of co-workers motivated
solely by hostility to his perceived sexual orientation.67 “Gender” is not to be equated

62 See, e.g., Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000); Hamner v. St. Vincent Hosp.
& Health Care Ctr., Inc., 224 F.3d 701 (7th Cir. 2000).
63 Green v. Adm. of the Tulane Educ. Fund, 284 F.3d 642, 659 (5th Cir. 2002); Succar v.
Dade County Sch. Bd., 229 F.3d 1343, 1345 (11th Cir. 2000).
64 EEOC v. Nat’l Educ. Ass’n, 422 F.3d 840, 844 (9th Cir. 2005); DeClue v. Cent. Illinois
Light Co., 223 F.3d 434, 437 (7th Cir. 2001).
65 202 Fed. Appx. 56 (6th Cir. 2006).
66 Id. at 59.
67 See, e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 765 (6th Cir. 2006); Kay v.
Independence Blue Cross, 142 Fed. Appx. 48 (3d Cir. 2005); Higgins v. New Balancest
Athletic Shoe Co., 194 F.3d 252 (1 Cir. 1999).

with “sexual orientation” under Title VII. In Spearman v. Ford Motor Co.,68 the
plaintiff claimed that he had been subjected to vulgar and sexually explicit insults and
graffiti by his co-workers who, he alleged, perceived him to be too feminine to fit the
male image in a manufacturing plant. But because the employee’s problems were
found to stem from an altercation over work issues and because of his apparent
homosexuality, rather than sex, the Seventh Circuit dismissed the action. If the
plaintiff can show that the harassment was based on his or her failure to conform to
gender stereotypes, however, an action for sexual harassment may be allowed.
The Supreme Court has denounced sexual stereotyping under Title VII in a
failure to promote case,69 and several federal appellate courts have applied the same
rationale in the harassment setting. In Nichols v. Azteca Restaurant Enterprizes, Inc.,70
a male restaurant employee was addressed by his coworkers as a female and was
taunted for his feminine manner of walk and serving customers, in addition to being
subjected to derogatory comments based on his sexual orientation. The court
ultimately found that the harassment at issue was closely linked to gender because the
plaintiff’s harassers discriminated against him for being too feminine.
In a subsequent case, however, the Ninth Circuit en banc largely disregarded
sexual stereotypes, focusing instead on the “unwelcome physical conduct of a sexual
nature” to permit a gay man to pursue an harassment claim. The plaintiff in Rene v.
MGM Grand Hotel71 was a former butler who claimed his supervisor and several
fellow employees on an all male staff engaged in offensive gestures and touched his
body “like they would to a woman.” In this “sexual touching hostile environment”
case, the appellate court ruled, the sexual orientation of the victim was “irrelevant,”
since “[t]he physical attacks to which Rene was subjected, which targeted body parts
clearly linked to his sexuality, were ‘because of ... sex.’”72 Three judges concurred in
the result, but wrote separately that the employee could sue for gender-stereotyping
harassment as in Nichols. In both cases, they stated, a male employee was mocked for
his mannerisms and addressed by coworkers in female terms “to remind [him] that he
did not conform to their gender-based stereotypes.”73
Instead of animosity or ridicule, post-Oncale courts have also considered issues
raised by employees who are subjected to unwelcome displays of affection or sexual
advances by supervisors or coworkers of the same sex. This has likewise required a
judicial determination as to the motivation behind the alleged discriminatory conduct
— whether based on gender or sex, which is prohibited by Title VII, or sexual
orientation, which is not. In Oncale, the Supreme Court noted that one way by which

68 231 F.3d 1080 (7th Cir. 2000).
69 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
70 256 F.3d 864 (9th Cir. 2001). But cf., Kay v. Independence Blue Cross, 142 Fed. Appx.

48, 51 (3d Cir. 2005).

71 305 F.3d 1061 (9th Cir. 2002), cert. denied, MGM Grand Hotel, LLC v. Rene, 538 U.S.

922 (U.S. 2003).

72 Id. at 1066.
73 Id. at 1069.

a plaintiff can prove that an incident of same-sex harassment constitutes sex
discrimination is to show that the alleged harasser made explicit or implicit proposals
of sexual activity and provide “credible evidence” that the harasser was homosexual.
In Shepherd v. Slater Steels Corp.,74 the Seventh Circuit permitted the case to go to
trial on evidence that the harasser’s action was based on sexual attraction, such as
repeated remarks that the plaintiff was a “handsome young man,” coupled with other
encounters of a sexual nature. The Fifth Circuit has decided that there are two types
of evidence that are likely to be “especially [credible] proof” that the harasser may be
a homosexual.75 The first type is evidence suggesting that the harasser intended to
have some kind of sexual contact with the plaintiff, rather than “merely to humiliate
him for reasons unrelated to sexual interest.” Second is proof that the alleged harasser
made same-sex advances to others, particularly other employees. According to the
court, a harasser might make sexually demeaning remarks and putdowns for sex-
neutral reasons, but it is less likely that sexual advances would be made without regard
to sex. Other courts have required the plaintiff to demonstrate that the harassment was
motivated by sexual desire.76 Suffice it to say, considerable confusion persists among
the lower courts as to whether gender, sexual attraction, or conduct of a sexual nature
is the key factor distinguishing discrimination based on sex from sexual orientation
discrimination in the same-sex harassment context. To a large extent, the answer may
depend on the facts presented by the particular case.
In 1991, Congress enacted amendments to the Civil Rights Act of 1964.77 Of
particular importance to sexual harassment claimants, the amendments established
jury trials and compensatory and punitive damages as remedies for Title VII
violations. Previously, Title VII plaintiffs had no right to a jury trial and were entitled
only to equitable relief in the form of injunctions against future employer misconduct,
reinstatement, and limited backpay for any loss of income resulting from any
discharge, denial of promotion, or other adverse employment decision. Consequently,
victims of alleged sexual harassment were often compelled to rely on state fair
employment practices laws,78 or traditional common law causes of action for assault,
intentional infliction of emotional distress, unlawful interference with contract,
invasion of privacy, and the like, to obtain complete monetary relief.79 Section 102 of
the 1991 amendments altered the focus of federal EEO enforcement from reliance on

74 168 F.3d 998 (7th Cir. 1999).
75 La Day v. Catalyst Tech., Inc., 302 F.3d 474 (5th Cir. 2002).
76 Dick v. Phone Directories Co., 397 F.3d 1256, 1264 (10th Cir. 2005).
77 Civil Rights Act of 1991, P.L. 102-166, 105 Stat. 1071.
78 E.g., Wirig v. Kinney Shoe Corp., 448 N.W. 2d 526, 51 FEP Cases 885 (Minn. Ct.App.

1989), aff’d in part and rev’d in part on other grounds, 461 N.W.2d 374 (Minn. Sup.Ct.


79 See, e.g., Rojo v. Kliger, 52 Cal.3d 65, 901 P.2d 373 (Cal. Sup.Ct. 1990); Baker v.
Weyerhauser Co., 903 F.2d 1342 (10th Cir. 1990); Syndex Corp. V. Dean, 820 S.W.2d 869
(Tex. App. 1991).

judicial injunctions, where voluntary conciliation efforts fail, to jury trials, and
compensatory and punitive damages in Title VII actions involving intentional
Compensatory damages under the 1991 Act include “future pecuniary losses,
emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life,
and other nonpecuniary losses.”81 The compensatory and punitive damages provided
by §102 are “in addition to any relief authorized by Section 706(g)” of the 1964 Civil
Rights Act.82 The 1991 amendments further state that “[c]ompensatory damages award
under [§ 1981a] shall not include backpay, interest on backpay, or any other type of
relief authorize under section 706(g) ...” Therefore, plaintiffs may recover damages
in addition to equitable relief, including backpay. Punitive damages may also be
recovered against private employers where the plaintiff can demonstrate that the
employer acted “with malice or reckless indifference” to the individual’s federally
protected rights. Punitive damages are not recoverable, however, against a
governmental entity.83 In cases where a plaintiff seeks compensatory or punitive
damages, any party may demand a jury trial.84
The damages remedy under the law is limited by dollar amount, however,
according to the size of the defendant employer during the twenty or more calendar
weeks in the current or preceding calendar year. The sum of compensatory and
punitive damages awarded may not exceed: $50,000 in the case of an employer with
more than 14 and fewer than 101 employees; $100,000 in the case of an employer
with more than 100 and fewer than 201 employees; $200,000 in the case of an
employer with more than 200 and fewer than 501 employees; and $300,000 in the case
of an employer with more than 500 employees.85 In jury trial cases, the court may not
inform the jury of the damage caps set forth in the statute.
In Pollard v. E.I. duPont de Nemours & Co.,86 the Supreme Court significantly
expanded the amount of monetary relief that may be awarded victims of sexual
harassment or other forms of intentional discrimination prohibited by Title VII. Prior
to that decision, there was a dispute among the circuits as to whether “front pay” in
lieu of reinstatement was authorized by § 706(g) of Title VII, or was included in
“compensatory damages” and subject to the $300,000 cap imposed by the 1991 Act.87
Front pay is money awarded for lost compensation during the period between
judgment for a Title VII plaintiff and the plaintiff’s reinstatement, or money awarded

80 105 Stat. 1072, 42 U.S.C. § 1981a.
81 42 U.S.C. § 1981a(b)(3).
82 Id. at § 1981a(a)(1).
83 Id. at § 1981a(b)(1).
84 Id. at § 1981a(c).
85 Id. at § 1981a(b)(3).
86 532 U.S. 843 (2001).
87 The Sixth Circuit in Pollard had held front pay subject to the cap, 213 F.2d 933, while
other circuits had concluded to the contrary. E.g. Pals v. Schepel Buick & GMC Truck, Inc.,thth

220 F.3d 495 (7 Cir. 2000); EEOC v. W&O Inc., 213 U.S. 600 (11 Cir. 2000).

when reinstatement is impractical. When reinstatement is not immediately available,
front pay is paid until the plaintiff is reinstated. In some instances, however,
reinstatement may not be a viable option at all. Continuing hostility between the
plaintiff and the employer or co-workers, or psychological injuries suffered as a result
of discrimination, may prevent the plaintiff’s return to the workplace. Front pay in
such circumstances is a substitute for reinstatement.
The plaintiff in Pollard had claimed that she was a victim of co-worker
harassment and that her supervisors were aware of the illegal conduct. As a
consequence, she was given a medical leave of absence for psychological assistance
but was later fired for refusing to return to what she claimed was a hostile work
environment. At trial, Pollard was awarded $300,000 in compensatory damages — the
maximum allowable — for emotional and psychological suffering but was denied any
additional front pay because of the cap. The Sixth Circuit affirmed the result.
In a unanimous decision, the Supreme Court concluded that front pay is not an
element of compensatory damages within the meaning of the 1991 Act, thus ruling
that the statutory cap did not apply. Tracing the history of Title VII, the Court noted
that the original statute authorized backpay awards, which had been interpreted by the
courts to include front pay to a date certain in the future as an alternative to
reinstatement. To limit front pay to cases where there is eventual reinstatement after
judgment, reasoned the Court, would leave the most egregious offenders subject to the
least sanctions. Likewise, a ruling that front pay could be considered compensation
for “future pecuniary losses” subject to the damages cap would fly in the face of the
congressional intent behind the 1991 Act “to expand the available remedies by
permitting the recovery of compensatory and punitive damages in addition to
previously available remedies, such as front pay.” The consequences of Pollard for
employers may be considerable. The estimated monetary value of harassment or other
intentional discrimination cases may be multiplied several times if juries or judges can
be persuaded by plaintiffs’ attorneys to award front pay for years, or even decades,
into the future.88
The expansion of Title VII remedies dramatically affects the level of relief
available in cases of intentional sex discrimination, where for the first time employees
in the private sector have the prospect of federal compensatory and punitive damage
recoveries and the right to a jury trial. The act now provides a monetary remedy for
victims of sexual harassment in employment in addition to lost wages. Since
harassment of the hostile environment type often occurs without economic loss to the
employee, in terms of pay or otherwise, critics of the prior law charged that the sexual
harassment victim was frequently without any effective federal relief. Title VII

88 In a precursor to Pollard, for example, the Ninth Circuit affirmed a jury award of
$350,000 in compensatory damages and $124,010.46 back pay for lost wages to a 59-year-
old woman who was forced to quit her job due to posttraumatic stress syndrome caused by
workplace harassment. Because she claimed that her age, stress, and background would
foreclose a future job or career, the trial court also awarded the employee more than
$600,000 in “front pay” to cover wages lost from the date of jury verdict forward for eleven
years. Amtrak argued that this front pay award must be included in the $300,000 statutory
cap on damages as “future pecuniary losses” specifically covered by the statute. Gotthardtth
v. Nat’l R.R., 191 F.3d 1148 (9 Cir. 1999).

plaintiffs may now seek monetary compensation for emotional pain and suffering, and
other pecuniary and nonpecuniary losses, caused by sexual harassment. Moreover,
federal claims may be joined with pendent state-law claims for damages unlimited by
the caps in the federal law or an election made between pursuing state and federal
Liability of Employers and Supervisors
for Monetary Damages
The addition of monetary damages to the arsenal of Title VII remedies rekindled
inquiry into an employer’s liability for harassment perpetrated by its supervisors and
nonsupervisory employees and the personal liability of individual harassers. The
Ellerth decision ratified the federal circuit courts, which had generally declared
employers vicariously liable for quid pro quo sexual harassment committed by
supervisors culminating in tangible job detriment.89 Only those with actual authority
to hire, promote, discharge, or affect the terms and conditions of employment can
engage in quid pro quo harassment and are held to act as agents of the employer,
regardless of their motivations. Quid pro quo harassment is viewed no differently than
other forms of prohibited discrimination for which employers have routinely been held
vicariously liable. Because Title VII defines employer to include “any agent” of the
employer, the statute is understood to have incorporated the principle of respondeat
superior, in effect holding “employers liable for the discriminatory [acts of] ...
supervisory employees whether or not the employer knew, should have known, or
approved of the supervisor’s actions.”90 However, the suggestion in Meritor Savings
that courts look to agency law in developing liability rules for hostile work
environment led most lower federal courts to reject vicarious liability for employers
lacking actual or constructive knowledge of environmental harassment perpetrated by
a supervisor. Prior to Ellerth and Faragher, most courts made an employer liable for
a hostile environment only if it knew or should have known about the harassment and
failed to take prompt remedial action to end it.
Vicarious Employer Liability: the Ellerth/Faragher
Affirmative Defense
A different set of liability principles was adopted by the Supreme Court for
supervisory harassment in Ellerth (discussed above) and Faragher v. City of Boca
Raton.91 While working for the City of Boca Raton, Faragher and her female
colleagues were subjected to offensive touching, comments, and gestures from two
supervisors. Although Faragher did not complain to department management at the
time of her employment, when she resigned from her position for reasons unrelated
to the alleged harassment, Faragher sued the city under Title VII.

89 See Horn v. Duke Homes, 755 F.2d 599, 604 (7th Cir. 1985).
90 Meritor Sav., 477 U.S. at 70-71.
91 524 U.S. 775 (1998).

As in Ellerth, the Faragher Court largely abandoned the legal distinction
between quid pro quo and hostile environment harassment, looking instead to agency
principles as guides to employer liability for supervisory misconduct. The Court
reiterated Ellerth’s determination that sexual harassment by a supervisor is not within
the scope of employment. But because a supervisor is “aided” in his actions by the
agency relationship, a more stringent vicarious liability standard was warranted than
pertains to similar misconduct by mere co-workers, where the employer is liable for
negligence only if he fails to abate conditions of which he “knew or should have
known.” “When a person with supervisory authority discriminates in the terms and
conditions of subordinates’ employment, his actions necessarily draw upon his
superior position over the people who report to him, or those under them, whereas an
employee generally cannot check a supervisor’s abusive conduct the same way that
she might deal with abuse from a co-worker.”92
The Court also determined, however, that public policy considerations were
important in crafting employer liability rules. The congressional design behind Title
VII favored both the creation of anti-harassment policies and effective grievance
mechanisms by employers, and a coordinate duty on the part of employees to avoid
or mitigate harm. To accommodate these Title VII policies and agency principles of
employers’ vicarious liability, the Court in Ellerth and Faragher adopted a composite
standard which for the first time explicitly allows employers an affirmative defense
to liability for environmental harassment caused by supervisory misconduct.
According to the Court:
An employer is subject to vicarious liability to a victimized employee for an
actionable hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee. 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 .... 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 preventative or
corrective opportunities provided by the employer or to avoid harm otherwise.
While proof that an employer had promulgated an antiharassment policy with
complaint procedure is not necessary in every instance as a matter of law, the need
for a stated policy suitable to the employment circumstances may appropriately
be addressed in any case when litigating the first element of the defense. And
while proof that an employee failed to fulfill the corresponding obligation of
reasonable care to avoid harm is not limited to showing an unreasonable failure
to use any complaint procedure provided by the employer, a demonstration of
such failure will normally suffice to satisfy the employer’s burden under the93
second element of the defense.
The affirmative defense is unavailable, however, and employers are strictly liable for
harassment of subordinate employees by their supervisors perpetrated by means of a
“tangible employment action,” such as discharge, demotion, or undesirable
reassign ment.

92 Id. at 803.
93 Id. at 807-08.

The affirmative defense adopted by the Court in Ellerth and Faragher imposes
a duty of care on both the employer and the employees to prevent workplace
harassment and to mitigate its effects. The first line of defense for the employer is to
adopt and communicate to its staff and management an effective sexual harassment
policy and complaint procedure. In most cases, the failure to do so — at least in the
case of large employers, like the city government in Faragher — will result in strict
liability for any harassing conduct by supervisory employees, whether or not the
alleged victim suffers any adverse employment action. Questions remain, however,
as to scope of that legal obligation, particularly in relation to smaller employers, since
the Court’s formulation appears to leave open the possibility that corrective actions
short of a formalized anti-harassment policy may be reasonable, at least in some
circumstances. Thus, considerations of employer size and resources, and the structure
of the workplace (e.g., whether a single location or on scattered sites) may be relevant
Similarly, the latest High Court decisions place the burden on aggrieved
employees to avail themselves of corrective procedures provided by the employer —
thereby mitigating damages caused by the alleged harassment — or risk having their
claim legally barred. However, the Court did not address whether an employee’s
failure to take such saving action would be deemed “unreasonable” if the complainant
is able to demonstrate the inadequacy of the employer’s grievance procedure, if
employees had suffered retaliation for invoking the procedure in the past, or if
harassing supervisors previously had not been disciplined for their action. Nor do the
decisions specifically address the fate of employers denied the benefit of the
affirmative defense because an employee followed the complaint procedure set forth
in the employer’s anti-harassment policy. Is strict employer liability the rule in such
cases, or is the issue to be decided in light of the overall appropriateness of the
employer’s remedial response? Thus, many questions remain for lower courts to
decide in regard to the employer’s assertion of an affirmative defense. Consequently,
while clarifying the law to some extent, it may take the courts years to flesh out the
concept of “reasonable care,” “correct promptly,” “unreasonably failed,” and “tangible
employment action,” all key elements in the Court’s definition of the employer’s
affirmative defense.
Some guidance may be gleaned from later federal appeals court decisions that
have grappled with issues left unresolved by Ellerth and Faragher. Much judicial
attention has focused on whether conduct alleged by the plaintiff amounts to a tangible
employment action, nullifying the employer’s affirmative defense, and to the adequacy
of any corrective action taken by the employer in response to alleged harassment.
Aside from hiring, discharge, promotion or demotion, and benefits decisions having
direct economic consequences, an employment action may be “tangible” if it results
in a significant change in employment status.94

94 See, e.g., Murray v. Chicago Transit Auth., 252 F.3d 880 (7th Cir. 2001); Durham Life
Ins. Co v. Evans, 166 F.3d 139, 153 (3d Cir. 1999); Watts v. Kroger Co., 170 F.3d 505, 510thth
(5 Cir. 1999); Sharp v. City of Houston, 164 F.3d 923 (5 Cir. 1999); Reinhold
Commonwealth of Virginia, 151 F.3d 172 (4 Cir. 1998); Webb v. Cardiothoracic Surgeryth
Assoc., 139 F.3d 532 (5 Cir. 1998).

In addition, most courts have read Ellerth to require, at a minimum, that the
employer establish, disseminate, and enforce an anti-harassment policy and complaint
procedure.95 Beyond adopting an anti-harassment policy and procedures for its
employees, the employer must undertake immediate and appropriate corrective action
— including discipline proportionate to the seriousness of the offense — when it
learns of a violation.96 Whether the employer has responded in a prompt and
reasonable manner depends on all the underlying facts and circumstances, and the
harassment victim’s own conduct may be a relevant factor.97 In some cases, alleged
harassers who were discharged but later exonerated have sued their employers. The
employer has usually prevailed, however, as long as the decision to fire or otherwise
discipline the suspected perpetrator was based on a good faith belief of misconduct
after an adequate investigation was performed.98 Even before the High Court’s latest
decisions, lower court rulings suggested that the most effective defensive strategy for
employers to avoid liability for a hostile work environment was a proactive
approach.99 In addition, the courts have generally been reluctant to impose Title VII
liability on employers who act “prophylactically” to stem harassing conditions before
they begin.100
The practical lesson for employers is to formulate and communicate to
employees a specific policy forbidding workplace harassment; to establish procedures
for reporting incidents of harassment that bypass the immediate supervisor of the
victim if he or she is the alleged harasser; to immediately investigate all alleged
incidents and order prompt corrective action (including make-whole relief for the
victim) when warranted; and to appropriately discipline the harasser.
Finally, the Court continued to build on its holdings in Faragher and Ellerth in
Kolstad v. American Dental Association.101 Addressing the availability of punitive
damages for violations of Title VII, the Court concluded that although an employer
may be vicariously liable for the misconduct of its supervisory employees, it will not
be subject to punitive damages if it has made good faith efforts to comply with Title

95 See, e.g., Durham Life Ins. Co., 166 F.3d 139, 162 (3d Cir. 1999); Sharp, 164 F.3d at 931-

32; Wilson v. Tulsa Junior College, 164 F.3d 534 (10th Cir. 1998); But cf. Hall v. Bodineth

Elec. Co., 276 F.3d 345 (7 Cir. 2002).
96 See Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606 (5th Cir. 1999);
Mockler v. Multnomah County, 140 F.3d 808 813 (9th Cir. 1998).
97 See, e.g., Gawley v. Indiana Univ., 276 F.3d 301 (7th Cir. 2002); Jackson v. Arkansas
Dep’t of Educ., 272 F.3d 1020 (8th Cir. 2001); Indest v. Freeman Decorating, Inc., 164 F.3dth
258 (5 Cir. 1999); Coates v. Sundor Brands, Inc., 164 F.3d 1361 (llth Cir. 1999); Van Zant
v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996); Steiner v. Showboatth
Operating Co., 25 F.3d 1459 (9 Cir. 1994), cert. denied, 513 U.S. 1082 (1995).
98 See, e.g., Cotran v. Rollins Hudig Hall Int’l, Inc., 17 Cal. 4th 93 (1998); Morrow v. Wal-
Mart Stores, Inc., 152 F.3d 559 (7th Cir. 1998); Waggoner v. City of Garland Tex., 987 F.2dth

1160, 1165 (5 Cir. 1993).

99 See, e.g., McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473 (7th Cir. 1996).
100 See, e.g., Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548 (11th Cir. 1997); Gary v. Long,

59 F. 3d 1391 (D.C. Cir 1995).

101 527 U.S. 526 (1999).

VII. The Court noted that subjecting employers that adopt antidiscrimination policies
to punitive damages would undermine Title VII’s objective of encouraging employers
to prevent discrimination in the workplace.
Constructive Discharge
In 2004, the Supreme Court resolved a conflict among the federal circuits
concerning the defenses, if any, that may be available to an employer against an
employee’s claim that she was forced to resign because of “intolerable” sexual
harassment at the hands of a supervisor. In Pennsylvania State Police v. Suders,102 the
plaintiff claimed that the tangible adverse action was supervisory harassment so severe
that it drove the employee to quit, a constructive discharge in effect. The Court
accepted the theory of a constructive discharge as a tangible employment action, but
it also set conditions under which the employer could assert an affirmative defense
and avoid strict liability under Title VII. The issue is of key importance for
determining the scope of employers’ vicarious liability in “supervisory” sexual
harassment cases alleging a hostile work environment.
As noted, Farager and Ellerth held employers strictly liable for a sexually hostile
work environment created by a supervisor, when the challenged discrimination or
harassment results in a “tangible employment action.” The Court defined that term
categorically to mean any “significant change in employment status” that may — but
not always — result in economic harm. Specifically, included were “hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits”103 However, a “constructive
discharge,” where the employee quits, claiming that conditions are so intolerable that
he or she was effectively “fired,” presented an unresolved issue. Could an employer,
faced with a claim of constructive discharge, still assert the Ellerth/Farager defense?
The constructive discharge doctrine originated in federal labor law and was later
transposed by judicial interpretation to employment discrimination cases. Basically,
the courts have held that an employee alleging a constructive discharge must
demonstrate the concurrence of two factors: (1) the employee suffered harassment or
discrimination so intolerable that a reasonable person in the same position would have
felt compelled to resign and (2) the employee’s reaction to the workplace situation
was reasonable given the totality of circumstances. Because of its direct economic
harm on employees, the Third Circuit in Suders joined the Eighth Circuit,104
concluding that constructive discharge, if proven, is the functional equivalent of an
actual dismissal and amounts to a tangible employment action. Taking the opposite
position, the Second and Sixth Circuits had decided that a voluntary resignation, as
opposed to a dismissal, was never the kind of official action that deprived the
employer of its legal defenses.105 The opposing circuits refused to view constructive

102 542 U.S. 129 (2004).
103 Ellerth, 524 U.S. at 761.
104 Jaros v. Lodge Net Enter. Corp., 294 F.3d 960 (8th Cir. 2002).
105 Turner v. Dowbrands, Inc., No. 99-3984, 2000 U.S. App. LEXIS 15733 (6th Cir. 2002);

discharge as a tangible employment action because it is a “unilateral” act of the
employee that is neither instigated nor ratified by the employer.
In Suders, the Court applied the framework of its 1998 rulings to stake out a
middle ground between the conflicting approaches to constructive discharge taken by
the courts of appeals. The only real difference between the harassment in
Ellerth/Farager and this case was one of degree; that is, Suders presented a “worst
case” scenario, or harassment “racheted up to the breaking point.” But a constructive
discharge claim requires more than a pattern of severe or pervasive workplace abuse
as would satisfy the legal standard for ordinary harassment. Employees advancing
“compound” claims must also prove that the abusive working environment became
so intolerable that a reasonable person would have felt compelled to resign. Such
objectively intolerable conditions could result from co-worker conduct, unofficial
supervisory act, or “official” company acts. The Court’s earlier decisions applied
agency principles to define employer vicarious liability for a supervisor’s harassment
of subordinates. Only when supervisory misconduct is “aided by the agency relation,”
as evidenced by a tangible or “official act of the enterprise,” is the employer’s
responsibility so obvious as to warrant strict liability. When no tangible employment
action is taken, the basis for imputing blame on the employer is less evident, and the
focus shifts to the Title VII policy of prevention. The employer may then defeat
vicarious liability by showing that it had reasonable anti-harassment procedures in
place that the employee unreasonably failed to utilize.
Ultimately, the Court held that Title VII encompasses employer liability for
constructive discharge claims attributable to a supervisor, but ruled that an “employer
does not have recourse to the Ellerth/Faragher affirmative defense when a
supervisor’s official act precipitates the constructive discharge; absent such a ‘tangible
employment action,’ however, the defense is available to the employer whose
supervisors are charged with harassment.”106 In recognizing hostile environment
constructive discharge claims, Suders enhanced Title VII protection for employees
who quit their jobs over intense sexual harassment by a supervisor. But the decision
also makes it easier for an employer to defend against such claims by showing that it
has reasonable procedures for reporting and correcting harassment of which the
employee failed to avail herself. Only “if the plaintiff quits in reasonable response to
an employer-sanctioned adverse action officially changing her employment status or
situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a
position in which she would face unbearable working condition,” is the employer
made strictly liable for monetary damages or other Title VII relief.107
Moreover, even where there has been a tangible employment action, coupled
with a constructive discharge or resignation, the employer may have defenses
available. First, the employer may argue that the harassing conduct did not occur as

105 (...continued)
Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999), cert. denied, 529 U.S.

1107 (2000).

106 Suders, 542 U.S. at 140-141.
107 Id. at 209.

alleged, or was not sufficiently severe, pervasive, or unwelcome to meet standards for
a Title VII violation. Second, if the tangible employment action is shown to be
unrelated to the alleged harassment, or is taken for legitimate non-discriminatory
reasons — particularly, if by persons other than the alleged harasser — the employer
might escape liability. Finally, the employer might be able to demonstrate that,
whatever form the underlying supervisory harassment may take, it did not meet the
standard for constructive discharge: “so intolerable that a reasonable person would
have felt compelled to resign.” But Suders also makes it more difficult to obtain
summary judgment and avoid jury trials in sexual harassment cases involving
constructive discharge claims. Under the decision, if there is any real dispute about
whether the employee suffered a tangible employment action, the employer may not
rely on the affirmative defense to obtain summary judgment.
Personal Liability of Harassing Supervisors and Co-workers
Because the term “agent” is included within the definition of “employer,” some
division of judicial opinion initially existed regarding the personal liability of
individual supervisors and co-workers for hostile environment harassment or other
discriminatory conduct. However, all of the federal circuit courts to address the
question eventually interpreted the term “agent” in the statutory definition as merely
incorporating respondeat superior and refused to impose personal liability on
agents.108 These courts also note the incongruity of imposing personal liability on
individuals while capping compensatory and punitive damages based on employer
size, as the statute does, and exempting small businesses that employ less than 15
persons from Title VII altogether.
Under Title VII, it is unlawful for employers to discriminate or retaliate against
an employee “because he has opposed any practice made an unlawful employment
practice [under Title VII] ... or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under [Title
VII].”109 The scope of this retaliation provision was the subject of judicial debate for
a number of years. In 2006, however, the Supreme Court issued its decision in
Burlington Northern and Santa Fe Railway Co. v. White,110 a case that involved a
plaintiff who alleged that her employer had unlawfully retaliated against her by

108 Lissau v. S. Food Serv., 159 F.3d 177, 181 (4th Cir. 1998); Wathen v. GE, 115 F.3d 400,

405 (6th Cir. 1997); Dici v. Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996); Haynes

Williams, 88 F.3d 898 (10 Cir. 1996); Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995);th
EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276 (7 Cir. 1995); Gary v. Long, 59 F.3d

1391 (D.C. Cir. 1995), cert. denied, 516 U.S. 1011 (1995); Grant v. Loan Star Co., 21 F.3dth

649 (5 Cir. 1994), cert. denied, 513 U.S. 1015 (1994); Miller v. Maxwell’s Int’l Inc., 991th

F.2d 583 (9 Cir. 1993), cert. denied, 510 U.S. 1109 (1994); Busby v. City of Orlando, 931th
F.2d 764 (11 Cir. 1991).
109 42 U.S.C. § 2000e-3(a).
110 548 U.S. 53 (2006).

reassigning her to a less desirable position after she had made several complaints
about sexual harassment on the job.
In a 9-0 decision with one justice concurring, the Court held that the statute’s
retaliation provision encompasses any employer action that “would have been
materially adverse to a reasonable employee or job applicant.”111 This standard, which
is much broader than a standard that would have confined the retaliation provision to
actions that affect only the terms and conditions of employment, generally makes it
easier to sue employers if they retaliate against workers who complain about
discrimination. Under the Court’s interpretation, employees must establish only that
the employer’s actions might dissuade a worker from making a charge of
discrimination. This means that an employee may successfully sue an employer for
retaliation even if the employer’s action does not actually result in an adverse
employment action, such as being fired or losing wages.
Recently, the Supreme Court agreed to review Crawford v. Metropolitan
Government of Nashville and Davidson County,112 a case in which the plaintiff alleges
that her participation in a sexual harassment investigation against her supervisor
resulted in her termination. Although the plaintiff cooperated in the investigation and
provided testimony regarding explicit comments and actions made by her boss, the
fact that she had not filed the sexual harassment complaint or other charges with the
EEOC led the lower court to rule that she was not covered under Title VII’s retaliation
provision. The Court is expected to issue a decision in the case during its 2008-2009
Sexual Harassment in the Schools
Title IX of the 1972 Education Amendments provides that “[no] person in the
United States shall, on the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any education program or113
activity receiving Federal financial assistance,” and the statute has been interpreted
to provide a basis for challenging sexual harassment in classrooms and on campuses.
The Court’s recent decisions involving Title IX address various issues, including
employer liability and the availability of damages.
Under Title IX, student victims of any form of sex discrimination, including
sexual harassment, may file a written complaint with the Office of Civil Rights (OCR)
for administrative determination and possible imposition of sanctions — including114
termination of federal funding — upon the offending educational institution. In
addition, school personnel who harass students may be sued individually for monetary
damages and other civil remedies under 42 U.S.C. § 1983, which prohibits the
deprivation of federally protected rights under “color of law.”

111 Id. at 57.
112 128 S. Ct. 1118 (2008).
113 20 U.S.C. § 1681(a).
114 34 C.F.R. § 100.7(d)(1)(1995).

In addition to making administrative sanctions available, Title IX provides
student victims with an avenue of judicial relief. In Cannon v. University of
Chicago,115 the Supreme Court ruled that an implied right of action exists under Title
IX for student victims of sex discrimination who need not exhaust their administrative
remedies before filing suit.116 However, the availability of monetary damages under
Title IX remained uncertain until Franklin v. Gwinnett County Public Schools.117 In
Franklin, a female high school student brought an action for damages under Title IX
against her school district alleging that she had been subjected to sexual harassment
and abuse by a teacher. Although the harassment became known and an investigation
was conducted, teachers and administrators did not act and the petitioner was
subsequently discouraged from pressing charges. The Court, which found that sexual
harassment by a teacher constituted discrimination on the basis of sex, held that
damages were available to the sexual harassment victim if she could prove that the
school district had intentionally violated Title IX.
After Franklin, it was clear that sexual harassment by a teacher constituted sex
discrimination, but the extent to which school districts could be held liable for
misconduct by its employees was less clear. The appropriate standard for measuring
a school district’s liability for sexual abuse of a student by a teacher remained
unsettled until the Supreme Court ruling in Gebser v. Lago Vista Independent School
District.118 In Gebser, the Supreme Court answered the question of what standard of
liability to apply to school districts under Title IX where a teacher harasses a student
without the knowledge of school administrators. Jane Doe, a thirteen year old student,
had been sexually abused by a teacher, but there was no evidence that any school
official was aware of the situation until after it ended. Instead of strict liability or
theory of constructive notice, Doe relied on the familiar common law principle later
applied by the Court in Ellerth and Faragher that an employer is vicariously liable for
an employee’s injurious actions, even if committed outside the scope of employment,
if the employee “was aided in accomplishing the tort by the existence of the agency
relationship.”119 According to this theory, the harasser’s status as a teacher made his
abuse possible by placing him in an authoritative position to take advantage of his
adolescent student. Because teachers are almost always “aided” by the agency
relationship, however, and application of the common law rule “would generate
vicarious liability in virtually every case of teacher-student harassment,” the Fifth
Circuit rejected the approach in favor of its actual knowledge standard.
In a 5 to 4 opinion, the Supreme Court affirmed, avoiding any comparison to the
strict liability and affirmative defense framework promulgated for Title VII
employment law. It held that a student who has been sexually harassed by a teacher
may not recover damages against the school district “unless an official of the school

115 441 U.S. 677 (1979).
116 A private right of action allows an individual to sue in court for violations under a statute
rather than wait for a federal agency to pursue a complaint administratively.
117 503 U.S. 60 (1992).
118 524 U.S. 274 (1998).
119 Doe v. Lago Vista Inde. Sch. Dist., 106 F.3d 1223, 1225 (5th Cir. 1997) (citing
Restatement (Second) of Agency § 219(2)(d)(1958).

district who at a minimum has authority to institute corrective measures on the
district’s behalf has actual knowledge of, and is deliberately indifferent to, the
teacher’s misconduct.”120 The differing legislative constructs of Title VII and Title IX,
and an apparent reluctance to impose excessive financial liability on schools, appeared
to drive the Court’s decision.
Unlike Title VII, Title IX has been judicially determined to provide only an
“implied” private right of action and rather than a statute of general application, it
imposes legal obligations only as a condition to the receipt of federal financial
assistance. These distinctions persuaded the Court to “shape a sensible remedial
scheme that best comports with the statute” and its legislative history.121 In analyzing
congressional intent, the Court examined the statutory provisions for Title IX
enforcement by means of federal agency termination of federal funds to noncomplying
school districts following notice and opportunity to be heard. Given the express notice
requirement of the statute, the majority felt it unfair to impose a vicarious or
constructive notice standard on school districts in private lawsuits. Moreover, there
was concern that the award of damages in any given case might unfairly exceed the
amount of federal funding actually received by the school. Consequently, there was
no actionable Title IX claim since responsible school administrators were without
notice or “actual knowledge” of the alleged sexual relationship. The Court summarily
noted that Lago Vista’s failure to promulgate and publicize an anti-harassment policy
and grievance procedure, as mandated by U.S. Department of Education regulations,
established neither actual notice, deliberate indifference, or even discrimination under
Title IX.
Davis v. Monroe County Board of Education, decided in 1999, addressed the
standard of liability that should be imposed on school districts to remedy student-on-
student harassment.122 The plaintiff in Davis alleged that her fifth-grade daughter had
been harassed by another student over a prolonged period — a fact reported to
teachers on several occasions — but that school officials had failed to take corrective
action. A sharply divided Court determined that the plaintiff had stated a Title IX
claim. Because the statute restricts the actions of federal grant recipients, however,
and not the conduct of third parties, the Court again refused to impose vicarious
liability on the school district. Instead, “a recipient of federal funds may be liable in

120 Gebser, 524 U.S. at 277 (1998).
121 Id. at 284.
122 526 U.S. 629 (1999). Prior to Davis, the federal appeals courts were divided between
those that refused to award Title IX damages or injunctive relief against a school district for
student-on-student or “peer” sexual harassment, Rowinsky v. Bryan Indep. Sch. Dist., 80thth
F.3d 1006 (5 Cir.), cert. denied 519 U.S. 861 (1996), Davis v. Monroe, 120 F.3d 1390 (11
Cir. 1997), and others that had applied agency principles and Title VII legal standards to
hold school officials liable for failure to take reasonable steps to prevent known hostile
environment harassment by students or other third parties. Murray v. New York Univ. Coll.
of Dentistry, 57 F.3d 243, 248-50 (2d Cir. 1995); Brown v. Hot, Sexy and Safer Prod., Inc.,

68 F.3d 525, 540 (lst Cir. 1995), cert. denied 516 U.S. 1159 (1996); and Clyde K.

Puyallup Sch. Dist., 35 F.3d 1396, 1402 (9 Cir. 1994).

damages under Title IX only for its own misconduct.”123 School authorities’ own
“deliberate indifference” to student-on-student harassment could violate Title IX in
certain cases. Thus, the Court held, where officials have “actual knowledge” of the
harassment, where the “harasser is under the school’s disciplinary authority,” and
where the harassment is so severe “that it can be said to deprive the victims of access
to the educational opportunities or benefits provided by the school,” the district may
be held liable for damages under Title IX.124
In qualifying the Davis standard, the Court suggested that student harassment
may be far more difficult to prove than sexual harassment in employment. Beyond
requiring “actual knowledge,” the Court cautioned that “schools are unlike the adult
workplace” and disciplinary decisions of school administrators are not to be “second
guess[ed]” by lower courts unless “clearly unreasonable” under the circumstances.
Additionally, the majority emphasized that “damages are not available for simple acts
of teasing and name-calling among school children, even where these comments target
differences in gender.”125 In effect, Davis left to school administrators the task of
drawing the line between innocent teasing and actionable sexual harassment — a
difficult and legally perilous task at best.
In 2001, OCR revised its Title IX guidance in light of the Supreme Court’s recent
decisions.126 The guidance is intended to illustrate the principles that a school should
use to recognize and effectively respond to sexual harassment of students in its
Meanwhile, the Supreme Court is poised to consider another case involving
allegations of student-on-student sexual harassment. In Fitzgerald v. Barnstable,127 the
Court will determine whether Title IX provides the exclusive statutory remedy for
unlawful sex discrimination in the education context, or whether victims of such
discrimination may file a claim under 42 U.S.C. § 1983 as well. The Court is expected
to issue a decision in the case during its 2008-2009 term.

123 Davis, 526 U.S. at 640.
124 Id. at 650.
125 Id. at 652.
126 Department of Education, Revised Sexual Harassment Guidance: Harassment of Students
By School Employees, Other Students, or Third Parties, January 19, 2001, at
[ ].
127 128 S. Ct. 2903 (2008).