DISCUSSION OF AUTHORITY
Marion Munley

I.INTRODUCTION

A.What Is Sexual Harassment?

Sexual harassment in the workplace may occur in many forms—physical, verbal, or nonverbal. Examples of physical sexual harassment include: unwanted touching, holding, grabbing, hugging, fondling, kissing, pinching; "accidental" collisions or brushing up against another person; physical assault; or sexual assault. Examples of verbal sexual harassment include: offensive graphic jokes or language; threats; comments and/or questions about a person’s sexual behavior; conversations filled with sexual innuendo and double entendres; comments about a person’s body; and suggestions of a sexual nature. Finally, examples of nonverbal sexual harassment include: offensive gestures or motions; leering at a person’s body; leaning over someone at a desk; displaying or circulating sexually suggestive cartoons, letters, or pictures; and other sexually oriented behavior.

According to the interpretive regulations of the Equal Employment Opportunity Commission ("EEOC"), sexual harassment consists of the following:

[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . when

(1)submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,

(2)submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or

(3)such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

29 C.F.R. § 1604.11(a) (1997). Anyone can be a victim of workplace sexual harassment—women and men holding a wide variety of jobs and professional positions, of all ages, races, and economic backgrounds. Likewise, anyone can be a perpetrator of workplace sexual harassment—supervisors, managers, co-workers, and nonemployees from outside the company such as sales representatives, clients, or customers.

B.Why Does Sexual Harassment Occur?

It is a common misconception that sexual harassment is solely a product of sexual desire. Oftentimes, there are other forces involved. There are several underlying bases for sexual harassment, one or more of which may be involved in any given situation: (1) the need to exert power over an individual, and using sexual harassment as a means of domination and control; (2) the inability to relate to an individual in an appropriate way; (3) the lack of knowledge that certain behaviors constitute unwelcome harassment; and (4) the lack of understanding that these behaviors have negative effects on others.

Regardless of the underlying reasons for sexual harassment, it is undisputed that such conduct can have highly negative effects. First and foremost, the victim of sexual harassment may suffer from physical and/or emotional effects that are caused by the harassment. Victims may feel humiliated, intimidated, embarrassed, insulted, angry, and unsafe. Often, the harassment interferes with the ability to perform the job successfully. In addition to the toll on the victim, sexual harassment can affect employers in a number of ways: loss of valued employees; decrease in productivity; decrease in sales and profits; loss of clients and customers; tarnishing of the company image; increase in employee absenteeism; bad publicity; and, of course, legal costs.

C.Title VII Of The Civil Rights Act Of 1964.

The policy behind Title VII is to achieve equality of employment opportunities and remedy discrimination in the workplace. Employees who have been victims of sexual harassment can bring a sexual harassment claim against their employer under Title VII of the Civil Rights Act of 1964. Title VII states that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). To put it simply, employers cannot treat employees differently just because of their sex. Initially, most courts held that sexual harassment fell outside the scope of Title VII and, therefore, victims of sexual harassment could not turn to Title VII for protection. However, by the 1980's, courts held that sexual harassment did constitute a violation of Title VII. See, e.g., Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64-65 (1986). It is now established law that sexual harassment in the workplace violates "Title VII’s broad rule of workplace equality." Harris v. Forklift Systems, Inc., 510 US. 17, 22 (1993).

According to the Supreme Court in Harris v. Forklift Systems, Inc., "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated." Id. at 21. Although Title VII states that it prohibits sex discrimination, it encompasses gender as well as sex discrimination. Technically, sex discrimination refers to discrimination based on the biological differences between men and women. Gender discrimination refers to discrimination based on the social or cultural differences. However, many courts, including those in the federal Third Circuit (in which Pennsylvania is situated), use these terms interchangeably. The Supreme Court has determined that "sex" and "gender" are not distinct concepts for purposes of Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989) (plurality opinion).

It must be kept in mind that Title VII is not designed to rid the workplace of vulgarity, and drawing the line is not always easy. "‘On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.’" Moore v. Grove North America, Inc., 927 F. Supp. 824, 830 (M.D. Pa. 1996) (quoting Baskerville v. Culligan Intern. Co., 50 F.3d 428, 430-31 (7th Cir. 1995)).

D.The Pennsylvania Human Relations Act.

The Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §§ 951 et seq., is remedial in nature, and the policy behind the PHRA is to make persons whole for injuries suffered as a result of discrimination.

The PHRA generally is in accordance with Title VII. Davis v. Sheraton Society Hill, 907 F. Supp. 896, 899 n.1 (E.D. Pa. 1995). However, the PHRA contemplates liability that extends beyond the scope of Title VII. For example, § 955(e) forbids "any person, employer, employment agency, labor organization or employee, to aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawful discriminatory practice."

II.BASIC PRINCIPLES IN SEXUAL HARASSMENT LAW

A.How Can A Plaintiff Bring A Claim For Sexual Harassment?

Before initiating a lawsuit in federal court under Title VII for sexual harassment, the plaintiff must first file a Charge of Discrimination with the EEOC, describing the alleged harassment. Upon review of the complaint, the EEOC may issue a "right to sue" letter, which permits the plaintiff to commence legal action within 90 days of receipt of the letter. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Generally, a Title VII action may not be maintained against a defendant who was not named as a defendant in the EEOC complaint. McLaughlin v. Rose Tree Media School Dist., 1 F. Supp. 2d 476, 481 (E.D. Pa. 1998).

Under Title VII, a person who has been subjected to sexual harassment may sue under two theories: quid pro quo, or hostile work environment. These are two distinct types of claims, and the standards for employer liability are different under each theory.

1."Quid pro quo" theory.

"Quid pro quo" literally means "exchanging something for something." In the context of workplace sexual harassment, quid pro quo describes the situation in which an employer, or one of the employer’s supervisors, conditions a tangible job benefit (i.e., pay increase, promotion, high performance appraisal) on an employee’s response to sexual advances. The key to a successful claim on this theory is that the "supervisor must have wielded the authority trusted to him to subject the victim to unwelcome sexual advances." Gary v. Long, 59 F.3d 1391, 1396 (D.C. Cir. 1995).

The Third Circuit, in Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296 (3d Cir. 1997), held that quid pro quo sexual harassment exists when one of the following two situations occur: (1) the submission to unwelcome sexual advances is made either explicitly or implicitly a term or condition of an individual’s employment; or (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting that individual. These two situations are different in that the first involves the employee being told beforehand that a privilege of employment will be affected by refusing to submit to the sexual advance, while the second situation involves the employee being deprived of a privilege of employment because of the refusal. Id. at 1297. In the first situation, the quid pro quo violation occurs when the employee is told that the employment privilege is dependent upon submission to the sexual advance. In the second situation, the employee must show that the refusal formed the basis for a negative employment consequence. Id.

To establish quid pro quo sexual harassment, the plaintiff must prove the following five elements: (1) the plaintiff is a member of a protected class; (2) she was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) the harassment complained of was based on sex; (4) her submission to the unwelcome advances was an express or implied condition for receiving job benefits or her refusal to submit resulted in tangible job detriment; and (5) respondeat superior liability—the employer failed to discipline, fire, or take remedial action upon receiving notice of the harassment. Farrell v. Planters Lifesavers Co., 22 F. Supp. 2d 372, 386 (D.N.J. 1998) (citations omitted). While an employee need not prove that the submission to a supervisor’s sexual advances was linked to conditions of employment in order to establish quid pro quo harassment, the employee must show that she suffered an adverse change in tangible aspects of the job, and that this change was the result of the refusal to submit to the sexual advance. Robinson.

In cases of quid pro quo harassment, courts typically hold employers strictly liable for sexual harassment committed by supervisory personnel. This means that sexual harassment by supervisory personnel is automatically imputed to the employer when the harassment results in a tangible job detriment to the employee. Meritor Savings Bank, 477 U.S. at 76 (Marshall, J., concurring). The rationale for applying strict liability is that the person engaging in quid pro quo harassment necessarily exercises the authority granted to him by the employer to effectuate the harassment.

2."Hostile work environment" theory.

The hostile work environment theory has been a less precise means of bringing a claim for sexual harassment under Title VII. According to the EEOC Guidelines on Discrimination Because of Sex, hostile environment sexual harassment is defined as:

"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature[,]" . . . whether or not it is directly linked to the grant or denial of an economic quid pro quo, where "such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment."

Meritor Savings Bank, 447 U.S. at 65 (quoting 29 C.F.R. § 1604.11(a)). Some examples of a hostile work environment include the display of sexually graphic calendars, graffiti, sexual objects and pictures, or the regular and persistent use of sexually offensive language, jokes, gestures, or comments. To state a claim for hostile work environment sexual harassment, the harassment must be sufficiently severe or pervasive "to alter the conditions of employment and create an abusive working environment." Meritor Savings Bank, 447 U.S. at 57.

According to the Third Circuit in Andrews v. City of Philadelphia, 893 F.2d 1469 (3d Cir. 1990), there are elements that a plaintiff must prove in order to successfully state a claim of hostile work environment sexual harassment: (1) he/she suffered intentional discrimination because of his/her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected him/her; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability. As to the final element, remedial action by the employer will be adequate to preclude a successful hostile work environment claim if the remedial action is "‘reasonably calculated to prevent further harassment.’" Mincin v. Shaw Packing Co., 989 F. Supp. 710 (W.D. Pa. 1997) (quoting Knabe v. Boury Corp., 114 F. 3d 407, 411 n.8 (3d Cir. 1997)).

Whether the working environment is "hostile" or "abusive" depends on whether a reasonable person would find it hostile or abusive. Harris, 510 U.S. at 21. In addition, the plaintiff must subjectively believe that the environment was hostile or abusive. Courts must consider the "totality of the circumstances" in making the determination of whether a hostile work environment exists. Courts cannot use an "individualized, incident-by-incident approach" in making this determination. Konstantopoulos v. Westvaco, 112 F.3d 710, 716 (3d Cir. 1997) (citing Andrews, 895 F.2d at 1486); West v. Philadelphia Elec. Co., 45 F.3d 744, 756 (3d Cir. 1995)). In using the "totality of the circumstances" test, the Third Circuit, in Konstantopoulos, held that it is not always illegal for an employer to require a prior victim of sexual harassment to return to work in the company of co-workers who were responsible for the prior harassment. In this case, the court pointed to several factors that led to the conclusion that the plaintiff was no longer subjected to a hostile work environment: (1) the passage of nearly seven months between the first period of employment (when harassment took place) and the second period of employment; (2) the employee’s willingness to return to work; (3) the trivial nature of the subsequent incidents of harassment; and (4) the employer’s effort to prevent further harassment by providing procedures whereby any improper conduct could have been reported and remedied. 112 F.3d at 716.

Under the hostile work environment theory, an employee need not demonstrate that the alleged conduct caused a tangible psychological injury. "[C]ertainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited so such conduct. 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." Harris, 510 U.S. at 22 (citing Meritor, 477 U.S. at 67). However, it should be noted that in order for employees to recover workers’ compensation under Pennsylvania law for sexual harassment, they must show "abnormal working conditions." In other words, the circumstances of employment, by their nature, would cause mental injury to a person with a "healthy psyche." Unlike Title VII, which does not require psychological injury, workers’ compensation claims under Pennsylvania law for "harassment" or "abnormal working conditions" are adjudicated based upon an objective mental inquiry. See Dici v. Brison, 91 F.3d 542 (3d Cir. 1996).

B.Proving Sexual Harassment—The Shifting Of Burdens.

As is often the case, a plaintiff will not necessarily have direct evidence of discriminatory intent by the employer. Therefore, "our legal system permits discrimination plaintiffs to prove their cases with circumstantial evidence." Weldon v. Kraft, 896 F.2d 793, 800 (3d Cir. 1990) (citations omitted). When the plaintiff relies on indirect or circumstantial evidence to prove sexual harassment under Title VII, courts apply a burden-shifting analysis that was first set forth by the Supreme Court in McDonnell Douglas.

Under this analysis, the plaintiff first bears the burden of establishing a prima facie case of discrimination. A prima facie case consists of the various elements needed for either a claim of quid pro quo or hostile work environment sexual harassment, which were described above. After the plaintiff establishes the required elements, the burden then shifts to the employer to state a legitimate, nondiscriminatory reason for the adverse employment action. At this stage, the employer’s burden is a light one. The employer need only produce evidence of its reasons, which, if believed by the jury, would support the conclusion that discrimination was not the cause for the adverse employment action. The employer does not need to prove that this reason was the actual motivation behind its behavior. That burden ultimately rests with the plaintiff.

Because it is relatively easy for the employer to meet the burden of stating a legitimate reason for the adverse action, the burden then shifts back to the plaintiff to prove that the employer’s reason was merely a pretext for discrimination. Specifically, the plaintiff must prove that (1) the reason stated by the employer is false; and (2) that discrimination was the real reason for the adverse employment action.

C.Retaliatory Action Against An Employee Who Files A Discrimination Claim.

Title VII states that

[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, assisted or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a). Although the Third Circuit has not specifically addressed the issue, various district courts, including courts in Pennsylvania, have held that the rejection of sexual advances is a protected activity within the meaning of Title VII. Farrell (citing, e.g., Armbruster v. Epstein, 68 Empl. Prac. Dec. (CCH) ¶ 44,093 (E.D. Pa. 1996)).

To establish a prima facie case of retaliation, the plaintiff must show that (1) she was engaged in an activity protected by Title VII (such as filing a complaint); (2) her employer took adverse action against her either after, or contemporaneously with, the protected activity; and (3) a causal link exists between the protected conduct and the adverse employment action. Farrell, 22 F. Supp. 2d at 390-91 (citing, e.g., EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997)). In addition, the plaintiff must have evidence that those who were responsible for the adverse employment action were actually aware of her engagement in the protected activity. Farrell, 22 F. Supp. 2d at 392.

The court in Farrell noted that currently, there seems to be a split among cases in the Third Circuit as to whether the timing of the alleged retaliatory action, alone, can support a finding of causation. For example, in Jalil v. Avdel, 873 F.3d 701 (3d Cir. 1989), the court held that the plaintiff established a prima facie case of retaliatory discharge when his employer fired him two days after he filed an EEOC complaint. However, two months later, the court in Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997), held that "[e]ven if timing alone could ever be sufficient to establish a causal link, . . . the timing of the alleged retaliatory action must be ‘unusually suggestive’ of retaliatory motive before a causal link will be inferred" (quoting Robinson, 120 F.3d at 1302).

III.RECENT DEVELOPMENTS

A.Employer Liability In The Wake Of The Supreme Court’s Decisions In Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), and Burlington Industries v. Ellerth, 118 S. Ct. 2257 (1998).

1.Unresolved issues prior to Faragher and Ellerth.

While most courts have agreed that quid pro quo sexual harassment results in strict liability for employers, it was unclear whether employers would still be held to a strict liability standard when the harassment did not result in an actual change in the tangible aspects of an employee’s job. In other words, the question is whether the employer would be strictly liable for sexual harassment under Title VII if the employee did not submit to the sexual advances and did not suffer any tangible consequences for refusing to do so. In addition, courts have been divided as to whether hostile work environment sexual harassment will result in strict liability.

2.Factual backgrounds.

a.Faragher v. City of Boca Raton.

Faragher was a case involving two female lifeguards (Beth Ann Faragher and Nancy Ewanchew) who worked for the City of Boca Raton, Florida, and were subjected to sexual harassment by one of their supervisors. The harassment consisted of repeated incidents of unwanted touching, crude and demeaning references to women, obscene gestures, comments about their bodies, and statements about having sex with them. 118 S. Ct. at 2281. Both women informed another supervisor about the harassment, but the supervisor did nothing, despite the fact that other female lifeguards had complained about harassing behavior. Faragher sued the city for hostile work environment sexual harassment under Title VII, and won. The Eleventh Circuit reversed on appeal, 111 F.3d 1530, 1538 (11th Cir. 1997), holding that the supervisor’s knowledge of the harassment could not be imputed to the city because the supervisor was not in a higher-management position in the city, and therefore the city had no duty to act on the supervisor’s knowledge and could not be liable for its failure to do so. In addition, the Eleventh Circuit reasoned that the supervisors were not acting within the scope of their employment when they engaged in the harassing conduct.

b.Burlington Industries, Inc. v. Ellerth.

In Ellerth, the plaintiff, Kimberly Ellerth, quit her job after 15 months as a salesperson in a division of Burlington Industries as a result of sexual harassment by one of her supervisors. The harassment included repeated offensive remarks and gestures. The supervisor who engaged in the harassing behavior was a mid-level manager and had the authority to hire and promote employees, subject to higher approval. In three instances, Ellerth was subjected to comments that could be interpreted as threats to deny tangible job benefits. Although she knew that the company had a policy against sexual harassment, she did not report the harassment to any authority in the company.

Ellerth did not submit to any of her supervisor’s advances but did not suffer from any detrimental consequences or retaliation. In fact, Ellerth was promoted once. She filed a suit against the company under Title VII, alleging that she had been constructively discharged because of the sexually harassing acts by her supervisor. Although she lost her case in the lower court, the Seventh Circuit reversed, producing eight separate opinions on the issue of whether Ellerth’s claim constituted quid pro quo sexual harassment and whether the company would be liable under a vicarious liability theory or a negligence theory.

3.A new standard of employer liability.

In Faragher, the Supreme Court reversed the ruling of the Eleventh Circuit Court of Appeals and held that an employer is vicariously liable for actionable dicrimination caused by a supervisor, but may invoke the affirmative defense that takes into account the reasonableness of the employer’s conduct as well as that of the victim. The City of Boca Raton was held liable for hostile work environment sexual harassment because "the City had entirely failed to disseminate its policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors like Terry and Silverman. The record also makes clear that the City’s policy did not include any assurance that the harassing supervisors could be bypassed in registering complaints. Under such circumstances, [the Court held] as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors’ harassing conduct." 118 S. Ct. at 2293. The Court held that the Court of Appeals committed error in rejecting a theory of vicarious liability based on the agency concept that an employer "‘is not subject to liability for the torts of his servants acting outside the scope of their employment unless . . . the servant purported to act or speak on behalf of the principal and there was reliance on apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.’" Id. at 2290 (citing § 219(2)(d) of the Restatement).

The Court noted that agency principles are merely the "starting point" for analysis of employer liability under Title VII. 118 S. Ct. at 2290. However, the Court also noted that it must follow the precedent set by Meritor, which states that "an employer is not automatically liable for harassment by a supervisor who creates the requisite degree of discrimination." Id. at 2291. There is a tension between the holding of Meritor and the idea that under Title VII, "it makes sense to hold an employer vicariously liable for some tortious conduct of a supervisor made possible by abuse of his supervisory authority." Id. at 2290. This tension is lessened by requiring proof of the supervisor’s use of his authority, and recognizing an affirmative defense to liability under certain circumstances, even when a supervisor has created a hostile work environment.

In Ellerth, the Court affirmed the decision of the Seventh Circuit Court of Appeals, and held that when an employee has not suffered a tangible job consequence as a result of her supervisor’s actions, the employer may raise an affirmative defense to liability or damages. Although the employer is vicariously liable for the acts of the supervisor, it should have the opportunity to assert and prove an affirmative defense to liability. In further revealing the difficulty in applying agency principles to Title VII cases, the Court began by stating that it would be implausible to interpret agency principles to hold an employer not liable when a tangible employment action is taken by a supervisor against a subordinate. 118 S. Ct. at 2269. However, cases in which there is no tangible employment action are more difficult. "On the one hand, a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation. . . . On the other hand, there are acts of harassment a supervisor might commit which might be the same acts a co-employee could commit, and there may be some circumstances where the supervisor’s status makes little difference." Id.

The crux of the Supreme Court’s holding in Faragher and Ellerth is the development of the "aided by the agency relation test." Under this test, 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." Ellerth, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2293. Even when no tangible employment action is taken, an employer may raise an affirmative defense to liability of damages. This defense is comprises of two elements: (1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Ellerth, 118 S. Ct. at 2270. The Court went on to explain:

While proof that an employer had promulgated an anti-harassment 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 any 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 the second element of the defense.

Id. However, it is important to note that when the supervisor’s harassment does result in a tangible employment action (such as discharge, demotion, or transfer to an undesirable assignment), the employer will not be able to use this affirmative defense.

 4.The Third Circuit’s explication of employer liability after Faragher and Ellerth.

On January 15, 1999, the Court of Appeals for the Third Circuit decided the case of Durham Life Insurance Co. v. Evans, Nos. 97-1683 and 97-1712, 1999 U.S. App. LEXIS 587 (3d Cir. Jan. 15, 1999). This case came in the wake of Faragher and Ellerth, and the Third Circuit used this case as an opportunity to explain the ways in which employers may be liable under the new standard.

Evans involved a female life insurance salesperson who was very successful. Her salary approached six figures, and unlike other agents, she had her own office and secretary. However, when her company was acquired by another company and new management took over, she began experiencing sexual harassment. The new management took away her office and secretary, took crucial files which made it impossible for her to do her work, and gave her more undesirable and lower-paying "lapse assignments" than other male insurance agents, which resulted in her earnings being cut in half. As a result of the harassment, she suffered physical symptoms and required mental health treatment for depression and distress. The District Court held that the facts supported a finding of hostile work environment, and the Third Circuit affirmed.

The Third Circuit explained that in Faragher and Ellerth the Supreme Court "drew a line between (1) discriminatory work-related supervisory acts, such as discriminating against women in work assignments to placate pervasive male hostility or reprimanding women ‘in harsh or vulgar terms’ while merely bantering with men for identical behavior, and (2) expressing sexual interest ‘in ways having no apparent object whatever of serving an interest of the employer.’" 1999 U.S. App. LEXIS, at *23 (citing Faragher, 118 S. Ct. at 2289). Under the first kind of discrimination, the employer would be automatically liable because such discrimination is within the scope of the supervisor’s employment, even if the employer did not want the supervisor to discriminate. Under the second kind of discrimination, the employer could be vicariously liable if the harassing conduct was made possible or aided by the agency relationship between the supervisor and employer. Evans, 1999 U.S. App. LEXIS, at *23 (citing Faragher, 118 S. Ct. at 2290).

In Evans, the court applied the Faragher/Ellerth "aided by the agency relation" test and held that based upon the totality of the evidence, the plaintiff established a hostile work environment. The employer was not permitted to use the affirmative defense because an adverse employment action had taken place. According to the Supreme Court, the "rule is clear: When harassment becomes adverse employment action, the employer loses the affirmative defense, even if it might have been available before." 1999 U.S. App. LEXIS, at *36. However, the Third Circuit recognized that "[s]cope of employment remains an elusive concept," and "while the Supreme Court has given us clearer instructions on how to determine liability under the aided by the agency relation standard," it is "mindful of the Supreme Court’s stated reason for formulating the affirmative defense." Id. at *26-27. These reasons include the need to give employers incentives to establish antiharassment programs, while recognizing that "too broad an interpretation of scope of employment might make effective antiharassment programs irrelevant to employer liability in many hostile environment cases, undermining the Court’s intent." Id. at *27-28.

Because Evans involved tangible employment action that created a hostile work environment, the Third Circuit found it unnecessary to

resolve the almost metaphysical questions surrounding scope of employment . . . for under Ellerth and Faragher’s aided by the agency relation test, sex-based mistreatment by a supervisor—whether overtly sexual or facially neutral and whether motivated by lust or dislike—creates automatic liability when it rises to the level of a tangible adverse employment action. The Court squarely held that, when there is a tangible adverse employment action or the employer fails to make out its affirmative defense, it is fair and just to hold the employer responsible for harassment. A supervisor can only take a tangible adverse employment action because of the authority delegated by the employer, and thus the employer is properly charged with the consequences of that delegation.

Id. at *29 (citations omitted).

B.Title VII Protects Against Same-Sex Sexual Harassment.

In March, 1998, the Supreme Court ruled in Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998), that same-sex sexual harassment is actionable under Title VII. In Oncale, the plaintiff was a male employee who was forcibly subjected to sex-related humiliating actions, as well physical assault in a sexual manner, by his co-workers and supervisors. In addition, his supervisor threatened him with rape. Although the plaintiff complained to supervisory personnel, no remedial action was taken. The plaintiff eventually quit his job because he felt that if he did not quit, he would be raped or forced to have sex. Id. at 1001.

In holding that same-sex sexual harassment is actionable under Title VII, the Supreme Court stated that there is

no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principle evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits "discriminat[ion] . . . because of . . . sex" in the "terms" or "conditions" of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

Id. at 1002. In its holding, the Supreme Court noted that its decision would not expand Title VII to become a general civility code. In referencing its prior decisions, the Supreme Court reemphasized that Title VII was not intended to reach "genuine but innocuous differences" in the way men and women interact with members of the same sex and of the opposite sex. Id. at 1003.

As in opposite-sex harassment, the plaintiff alleging same-sex harassment must still prove that the harassment altered the conditions of employment and that the conduct creates an objectively hostile or abusive work environment. Id. (citing Harris, 510 U.S. at 21). Again, the determination of whether the environment is hostile is based upon the perspective of a reasonable person in the plaintiff’s position, considering the totality of the circumstances. Cases of same-sex sexual harassment require particular attention to the social context in which the behavior occurs. As an example, the Court cited to a professional football player who is smacked on the buttocks by his coach as he heads onto the field. In this context, this act would not constitute sexual harassment. However, if the same conduct occurred in an office setting, it may reasonably be perceived as abusive. In short, "[c]ommon sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive." Oncale, 118 S. Ct. at 1003.

It is interesting to note that even before the Supreme Court’s ruling in Oncale, the Third Circuit held that same-sex sexual harassment is actionable under Title VII. King v. M.R. Brown, Inc., 911 F. Supp. 161 (E.D. Pa. 1995). The court reasoned that it is "untenable to allow reverse discrimination cases but not same-sex sexual harassment cases to proceed under Title VII." Id. at 167 (quoting EEOC v. Waldon Book Co., 885 F. Supp. 1100, 1103 (M.D. Tenn. 1995)). In addition, the court noted that the language of Title VII does not state that it applies only to harassment by the opposite sex, and that prior Supreme Court cases acknowledged that both men and women can be victims of sexual harassment. King, 911 F. Supp. at 167 (citing, e.g., Henson v. Dundee, 682 F.2d 897 (11th Cir. 1982)).

C.New Interpretations Of The Pennsylvania Human Relations Act.

In Hoy v. Angelone, ___ Pa. ___, 720 A.2d 745 (1998), the Supreme Court of Pennsylvania decided for the first time the following three issues under the PHRA: (1) punitive damages; (2) attorney’s fees; and (3) intentional infliction of emotional distress. The plaintiff in this case was a woman who was employed as the only female meat wrapper in a supermarket’s meat department. The meat manager subjected her to various forms of sexual harassment, including sexual propositions, indecent language, off-color jokes, physical contact, and posting sexually suggestive pictures. As a result of the harassment, the plaintiff took medical leave from her job in order to receive psychiatric treatment. Her physician determined that her condition was caused in part by the harassment that had taken place at her job. The jury awarded the plaintiff $51,000 damages for her claims under the PHRA, $25,000 in damages against her manager for intentional infliction of emotional distress, and a total of $50,000 in punitive damages against the store manager and the supermarket.

First, the Supreme Court of Pennsylvania held that punitive damages were not allowed under the PHRA. Under § 962(c)(3) of the PHRA, courts can order various forms of relief upon a finding of an unlawful discriminatory practice. Such forms of relief include: reinstatement or hiring of the employee, granting of back pay, or granting of other legal or equitable relief that the court deems appropriate. Although the language of the PHRA does not specifically make reference to punitive damages, the court held that an award of punitive damages is "not consistent with [the] goal of achieving the remedial purposes of the statute and are not a make-whole remedy," and is "not absolutely necessary to achieve the Act’s goals of eliminating discrimination and redressing injury." 720 A.2d at 749-50.

Second, the court held that the decision to award attorney’s fees rests within the sound discretion of the trial court and is reversed only upon an abuse of discretion. Under § 962(c)(2) of the PHRA, if "the court of common pleas finds that a defendant engaged or is engaging in any unlawful discriminatory practice as defined in this act, the court may award attorney fees and costs to the prevailing plaintiff." See id. at 751. However, in making this decision, courts may not consider the financial resources expended by the defendant in addressing the discrimination complaint. This provision of the PHRA is different from Title VII, which mandates the court to award the prevailing plaintiff with attorney’s fees and costs unless special circumstances exist, which would justify the denial of such reward. See id. (citing Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968)). In Pennsylvania, courts are bound by the clear and unambiguous language of the statute on the issue of attorney’s fees and costs.

Finally, the court noted that as a general rule, sexual harassment alone does not give rise to a claim of intentional infliction of emotional distress. To prove such a claim, "‘[t]he conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.’" Hoy, 720 A.2d at 754 (quoting Buczek v. First National Bank of Mifflintown, 366 Pa. Super. 551, 531 A.2d 1122 (1987)). In the employment context, there are few cases in which the alleged conduct would constitute intentional infliction of emotional distress. The Third Circuit noted that "the only instances in which courts applying Pennsylvania law have found conduct outrageous in the employment context is where an employer engaged in both sexual harassment and other retaliatory behavior against an employee." Hoy, 720 A.2d at 754-55 (citing Andrews, 895 F.2d at 1487) (emphasis added). Based on this precedent, the supreme court held that "retaliation is a critical and prominent factor in assessing the outrageousness of an employer’s conduct" and therefore allowing a claim of intentional infliction of emotional distress. Hoy, 720 A.2d at 754.
 

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