Ninth Circuit Applies Title VII Harassment Defense To Claims Under California Law
The U.S. Court of Appeals for the Ninth Circuit in San Francisco has ruled that an affirmative defense available to claims of workplace harassment by supervisors under federal law (Title VII) also applies to such claims brought under the analogous California state law, the Fair Employment and Housing Act (FEHA). Kohler v. Inter-Tel Technologies, 244 F.3d 1167 (9th Cir. 2001).
In Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the U.S. Supreme Court ruled that, under Title VII, employers are ordinarily liable for a hostile work environment created by a supervisor, but the Court also created an affirmative defense for employers. If no tangible employment action was taken against the employee, an employer may avoid liability by showing that: (1) it exercised reasonable care to prevent and correct the harassment; and ( 2) the employee unreasonably failed to take advantage of these procedures or otherwise failed to avoid harm. See Supreme Court Clarifies Standards for Employer Liability for Sexual Harassment by Supervisors (July 1, 1998). Under the Ninth Circuit’s decision in Kohler, the so-called Ellerth affirmative defense now is available not only in Title VII lawsuits but in actions under the California FEHA as well.
In Kohler, the plaintiff alleged that she was subjected to unwelcome sexual remarks, advances, and touching by her supervisor. During the four months she worked for Inter-Tel, the company had a sexual harassment policy in place, but the plaintiff never complained about her supervisor’s behavior either to higher management or to human resources; she simply resigned. The company first learned of the plaintiff’s harassment allegations in her charge of discrimination filed with the Equal Employment Opportunity Commission.
When the plaintiff subsequently filed suit in federal court, asserting claims under both Title VII and the FEHA, the district court dismissed the claims on summary judgment and the Ninth Circuit affirmed. With respect to the FEHA claims, the Court of Appeals noted that the California Supreme Court has not yet ruled on the matter but concluded that the Ellerth defense may be raised in a workplace harassment claim filed under FEHA. The court reasoned that California courts look to Title VII for guidance in interpreting FEHA. The court also observed that making the Ellerth defense available would support an important policy goal underlying FEHA, which is to encourage employers to establish programs that promptly and effectively address problems of sexual harassment.
Under the Supreme Court’s decision in Ellerth, the defense is not available in cases where the plaintiff suffers a tangible adverse employment action (such as a demotion or discharge) in connection with supervisor harassment. In Kohler, the plaintiff claimed that because she had rejected the supervisor’s advances, he acted in an angry manner toward her, withheld training, gave her inconvenient work schedules, and issued a negative performance evaluation. The Court of Appeals ruled that none of these employment actions were “tangible,” because none caused a significant change in employment status. In any event, the plaintiff had failed to show that these employment actions were connected to her rejection of her supervisor’s advances. The evidence showed, rather, that the supervisor yelled at many employees, that he had nothing to do with the plaintiff’s training being canceled, that variable schedules were typical at the company, and that the negative evaluation was based on admittedly poor performance.
Since the plaintiff had not suffered any tangible employment action connected to her supervisor’s advances, the employer was entitled to assert the Ellerth defense by showing that it had taken reasonable care to prevent and correct promptly sexual harassment and that the plaintiff unreasonably had failed to take advantage of that opportunity.
In applying the defense, the Court of Appeals first found Inter-Tel’s actions to be a paradigm of reasonable efforts. The company had an effective sexual harassment policy. The policy defined sexual harassment identified whom employees should contact, ensured that harassing supervisors could be bypassed, described disciplinary measures that could be meted out, and stated that retaliation would not be tolerated. In addition, once the company learned of the EEOC charge, it engaged a neutral third party to perform a thorough investigation, and the company sent plaintiff a letter telling her the outcome of the investigation. Although the investigator did not confirm plaintiff’s claim, it did find that the supervisor had sent an offensive voice mail message to several employees. The supervisor was reprimanded about the voice mail, and Inter-Tel undertook company-wide training on sexual harassment.
Applying the second prong of the defense, the Court of Appeals found that the plaintiff had unreasonably failed to use the company complaint procedure. The plaintiff acknowledged receipt of a copy of the sexual harassment policy and the company handbook, which also contained the policy. She also knew her boss’s supervisor and the human resources personnel and considered them to be professional and competent. Nevertheless, she failed to complain to any of these individuals.
The Kohler decision underscores for California employers the importance of maintaining an effective harassment-free workplace policy. Employers who do so will in many cases avoid liability not only under Title VII but under California law as well.