The ruling of the U. S. Supreme Court in Beth Ann Faragher v. City of Boca Raton, 524 U. S. 775 (1998) laid down precedent on the application of the Civil Rights Law as it addressed a woman’s quest for justice. Having accused and proved her two supervisors liable for sexual harassment, Faragher appealed the lower court’s ruling exculpating the City from liability. The decision, penned by Justice Souter, delved at length on the theories propounded on the case and sought to define the parameters by which an employer may prove non-liability.
This study will be confined to a discussion of the material facts and issues vis-a-vis the liability of the respondent employer insofar as it touches upon the reasonable care doctrine, reasonable person standard, and reasonable victim standard. The facts of the case narrated herein are taken from the Supreme Court decision. A college student, Beth Ann Faragher worked part-time as lifeguard for the Marine Safety Section of the Parks and Recreation Department of the City of Boca Raton, Florida between the years 1985 and 1990. She was under the immediate supervision of Bill Terry, David Silverman, and Robert Gordon.
During the hours of work, Terry and Silverman subjected Faragher and the other female lifeguards to acts of sexual harassment. Faragher complained to no one, although she did mention it to Gordon whom she respected, but he did nothing. Two months before Faragher resigned, a female lifeguard formerly employed by the City wrote the City Personnel Director complaining that she and her co-workers had been harassed by Terry and Silverman. The City ordered a probe and upon finding the two guilty of improper behavior, reprimanded them and made them choose between suspension without pay or forfeiture of annual leave benefits.
Faragher resigned in June 1990. In 1992, she brought an action before the U. S. District Court for the Southern District of Florida against Terry and Silverman alleging that they created a “sexually hostile atmosphere” at work which amounted to a violation of Title VII of the Civil Rights Law. She likewise impleaded the City on the ground of its agency relationship with the two men. (Faragher, 1-2) Faragher alleged that Terry and Silverman subjected her and the other female lifeguards to “uninvited and offensive touching”, lewd remarks, and language offensive to women.
She told the Court about Terry’s alleged statement that he would never promote a woman to the rank of lieutenant. Silverman, on the other hand, allegedly asked her either to date him or clean the toilets for a year. It was established that Terry could hire personnel(subject to approval by higher management) counsel or orally reprimand subordinates and have the same recorded. Lifeguards and their supervisors observed a paramilitary chain of command: the former reported to the lieutenants and captains who in turn reported to Terry.
The latter was under the supervision of the Recreation Superintendent who reported to the Director of Parks and Recreation who answered to the City Manager. (Faragher, 2) The City had adopted a policy on sexual harassment which the City Manager disseminated to employees by memorandum. This was revised in May 1990 while Faragher was still in the service but it did not reach the employees of the Marine Safety Section, thus, the respondent supervisors and many lifeguards were not aware of it. (Faragher, 2)
The District Court ruled in favor of Faragher, concluding that Terry and Silverman were guilty of harassment that altered the conditions of their employment, resulting in an abusive working environment. Likewise, it found the City liable on three grounds. First, the City was deemed aware of the harassment because of its pervasiveness. Second, the City was liable under the principle of agency, i. e. , the act of the agent is the act of the principal. Third, Gordon’s knowledge of the harassment and his inaction was a further basis to impute liability to the City. (Faragher, 3-4)
The District Court’s decision insofar as the City is concerned was reversed on appeal. The Court of Appeals of the Eleventh Circuit, through a panel of justices, ruled that the City could not be held liable on the basis of the agency principle, that Terry and Sullivan did not act within the scope of their employment when they committed the acts complained of, nor did the City have constructive knowledge thereof. The Court of Appeals sitting en banc adopted the conclusion of the panel. Its ruling was based on an earlier decision of the Court of Appeals in Meritor Savings Bank, FSB v.
Vinson, 477 U. S. 57 (1986). In that case, the Court found three conditions under which an employer may be held indirectly liable for hostile environment sexual harassment by a superior: “(1) if the harassment occurs within the scope of the superior’s employment; (2) if the employer assigns performance of a nondelegable duty to a supervisor and an employee is injured because of the supervisor’s failure to carry out that duty; or (3) if there is an agency relationship which aids the supervisor’s ability or opportunity to harass his subordinate.
” (Meritor, 6). As to the first, the Appeals Court held that the acts of the supervisors were “frolic”: unrelated to their duties and were done for their own personal ends. As to the second, it was ruled that the mere existence of an agency relationship between the supervisors and the City did not give rise to liability on the latter’s part as there was no showing that such relationship assisted them in perpetrating their acts. As to the third, the Court found no constructive knowledge on the part of the City as regards the harassment.
In fine, the Supreme Court disregarded the arguments of the Court of Appeals and found in favor of Faragher. (Faragher, 5) As argued by the District Court, the act of the agent is presumed the act of the principal. In applying this rule the District court held that “an employer is strictly liable for a hostile environment created by a supervisor’s sexual advances, even though the employer neither knew nor reasonably could have known of the alleged misconduct. ” This automatic liability rule is challenged by those who claimed that constructive knowledge may be substituted for direct knowledge.
For example, a supervisor who makes decisions that tend to affect the economic status of an employee is deemed a proxy of the employer which makes the latter liable thereon. Also, personnel actions of a supervisor like promoting, firing, hiring and the like which discriminate against employees would make his employer vicariously liable for those acts. In a sense, a supervisor is considered always assisted by the employer by virtue of his superior position in the workplace. A co-worker may easily brush off the sexual advances of an equal; not so with a supervisor.
Thus, Faragher contended` that the power held by Terry and Silverman over her enabled them to carry on their harassment with impunity. Some courts were of the view that some standards were needed in those cases where there is no clear showing that the employer had knowledge, constructive or otherwise, of the harassment committed by his supervisors. In Faragher, it was evident that the City could not have aware of the intermittent sexual abuse committed by Terry and Sullivan. Gordon did not inform any of his superiors about Faragher’s problem. (2).
Moreover, the City through the Personnel Director had issued a memorandum informing employees about the procedures to bring their complaint against any sexual harassment. Faragher had informed Gordon about her plight, albeit in an informal way. (Faragher, 2) Was the City liable? Meritor laid down the ruling that neither “the existence of a company grievance procedure nor the absence of actual notice of the harassment on the part of upper management would be dispositive of such a claim; while neither might be relevant to the liability, neither would result automatically in employer immunity. ” (6).
The Court further stated that the absence of notice to employer did not necessarily insulate that employer from liability. However, it declined to give a definitive rule on employee liability ( 7). Vicarious liability is supported by the view that employers generally derive benefit from the service of their supervisors; thus they should bear the risk of any wrong arising from their employment. The employer should likewise answer for any damage sustained by a common employee on the principle that the latter worked for the employer’s benefit; consequently, the employer must assume such risks on the basis of equity and fairness.
Notwithstanding these views, it was held in Faragher that one more condition was needed to satisfy the evidentiary requirement for a finding of vicarious liability. Two alternatives were given by the Court: “(1) require proof of some affirmative invocation of supervisory authority by the harassing supervisor, or (2) recognize an affirmative defense to liability in some circumstances, even when a supervisor has created the actionable environment. ”(Faragher, 16)
The first alternative, as the Court itself admits, may be impractical in most instances since no supervisor is presumed foolhardy enough to court harassment suits by announcing his threats. As to the second, the employer is afforded the opportunity to prove that he “had exercised reasonable care to avoid harassment and to eliminate it when it might occur, and that the complaining employee had failed to act with like reasonable care to take advantage of the employer’s safeguards and otherwise to prevent harm that could have been avoided.
” To invoke this defense, the employer must show that he had taken reasonable care or exercised foresight to prevent sexual harassment in the premises, knowing by human experience that such incidents are likely to occur, as in this case where the men held sway over the women by reason of their superior position. This affirmative defense has two elements: “(1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
”(Faragher, 18). The doctrine of reasonable care mandates that every person shall conduct his affairs towards his fellowmen with sufficient care as any reasonable person would do in any given circumstance, failing in which, he may be held liable for any injury that may be sustained by others so affected by his actions. What is “reasonable” is a question of fact most often left to the judgment of the courts. This principle is akin to that of tort law which governs the liability of masters over the acts of their servants.
It adopts the applicable principles of common law and those governing quasi-delict which impute liability to the employer for the negligence of his employees, the vehicle owner to the driver, the master of the household to the helper. The owner of a vehicle, for example, becomes the defendant in a civil action for damages if his driver inflicts damage to a third party. His defense would be that he exercised due diligence in hiring his driver, such as requiring him to show proof that he had not been in any accident and had no derogatory record on matters of driving.
According to Wikipedia, “the reasonable man or reasonable person standard is a legal fiction that originated in the development of the common law. The reasonable person is a hypothetical individual whose view of things is consulted in the process of making decisions of law. ”(no indicated page) Minnesota adds: “Besides being an objective standard, the ‘reasonable person’ standard is an adult standard. ”(home page). The reasonable person standard applies as well to the purported victim.
The victim must prove he or she was not remiss in doing what a reasonable person would have done in his or her place. By analogy, in criminal law, rape victims must prove they put up sufficient defense to prove that the sexual act was committed forcibly against their will. The reasonable victim standard is that applied in the case of the person wronged. Faragher did not avail herself of the grievance procedure prescribed by the City as mandated by the Equal Employment Opportunity Commission(EEOC), as she “was completely isolated from the City’s higher management” during the period of harassment.
(Faragher, 19). The term “reasonable victim” may have evolved from the realization that in determining what constitutes a reasonable person standard, gender must be taken into account. According to Hamilton, the term “reasonable woman” was used when a Florida District Court, ruling in Robinson v. Jacksonville Shipyards, Inc. called for a “sexually hostile work environment” to be evaluated through the eyes of a “reasonable woman. ” Years later, the U. S. Supreme Court used a “reasonable person” standard in deciding Harris v. Forklift Systems, Inc. (2)
According to Alexander: Applying the ‘reasonable victim’ standard not only helps plaintiffs, but also helps the justice system as a whole by defeating societal stereotypes perpetuated by the application of the “reasonable person” standard. By allowing defendant employers to claim an affirmative defense to the sexual harassment claims of their employees, the court would help protect cautious, law-abiding employees from frivolous claims.
The second prong of the defense would require employees to report sexually harassing conduct to their employers promptly, and at the same time, require employers to eliminate harassing conduct in the workplace swiftly or risk discipline in court. (home page). Faragher is a landmark decision in that it gave the definitive rule to determine employer liability not given by the Court in Meritor. The problem of sexual harassment may never be eradicated, human beings being as they are, but a concerned employer with forethought, through a competent human resource department, may considerably reduce its occurrence at the workplace.
From Faragher, human resource departments should take cognizance of the importance of constant meaningful dialogues between and among employers and their personnel – workers and supervisors alike – to immediately stop whatever harassment are being committed against members of either sex. Finally, a continuing education program aimed at removing gender bias and sexual prejudice, encouraging victims to speak out and assert their rights or seek redress before the proper forum, combined with the continuous monitoring of workplaces and giving employees reasonable access to legal assistance, are positive steps towards this end.
WORKS CITED Alexander, Kamla, “A Modest Proposal: The Reasonable Victim Standard and Alaska Employers’ Affirmative Defense to Vicarious Liability for Sexual Harassment”. Alaska Law Review. Cited 17 Alaska L. Rev. 297 http://www. law. duke. edu/journals/alr/ Alexander Hamilton Institute Inc. , “A Legal Look at the ‘Reasonable Victim’ Standard” Personnel Legal Alert. August 2, 2004, Vol. 16, No. 5 http://www. ahipubs. com/samples/08-02-04pla. pdf. Meritor Savings Bank, FSB v.
Vinson 477 U. S. 57 http://caselaw. lp. findlaw. com Minnesota Office of Citizenship and Volunteer Services, “Planning It Safe: How to Control Liability and Risk in Volunteer Programs, Revised Edition. 1998 http://www. energizeinc. com. art/html Supreme Court of the United States, “Beth Ann Faragher v. City of Boca Raton” 524 U. S. 775 <http://www. national center. org/FaraghervBocaRaton. 98. html> Wikipedia, “Reasonable Person Standard” http://en. wikipedia. org