This week marks the one-year anniversary of Harvey Weinstein’s fall from grace, after the New York Times published a bombshell investigative article about a lifetime of egregious sexual misdeeds. One year later, the #MeToo movement came into sharp contrast with the GOP-controlled Senate, which voted to elevate Judge Brett Kavanaugh to the US Supreme Court despite credible allegations of sexual misconduct. But while we ponder questions big and small about the problem of sexual misconduct and how to deal with it, courts continue the everyday work of hearing sexual harassment cases. In a recent case, EEOC v. Favorite Farms, Inc., a federal district court in Florida did exactly that, refusing to grant an employer’s motion for summary judgment in a workplace rape case that deserves a full trial on the merits.
Not Everyone’s Favorite Farm
Eulalia Salazar-Santiago is a seasonal field laborer for Favorite Farms in Florida. She lives with her two children in housing leased to her by her employer. Her direct supervisor was Hector Cruz; his responsibilities include assigning field laborers to the apartments leased by Favorite Farms.
According to Salazar-Santiago, Cruz showed up at her apartment on November 13, 2015, and told her he needed to assess whether there was enough room for him to move additional laborers into the apartment. But this was a pretense, she alleges. Once she allowed him to enter the apartment, he pushed her into a bedroom and raped her. She reported the rape immediately to management at Favorite Farms, but claims that the company took no action—not even an investigation. Cruz was not disciplined.
Favorite Farms took some action a year after the alleged rape, when it received notice that the EEOC was investigating a complaint by Salazar-Santiago. Yet, despite ignoring her claim, and doing little else to protect its employees from harassment, the company had the gall to move for summary judgment in the lawsuit—in essence, an order that says the facts are so clearly in the company’s favor that the court can rule on the case without a trial. The court disagreed, and the parties will move forward to trial.
Employer Liability for Sexual Harassment: Some Nuts and Bolts
To understand why the company’s motion in this case was so weak, one must know a bit about employer liability for sexual harassment.
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex. Sexual harassment is a form of sex discrimination, a principle recognized by the US Supreme Court since 1986 (and by the Equal Employment Opportunity Commission since 1980). For a sexual harassment victim to prevail in court, however, she must prove not only that she suffered harassment that was sufficiently severe or pervasive to be actionable, but also that there is some basis for holding the employer liable for the harassment.
The Supreme Court established rules governing supervisory sexual harassment in twin 1998 opinions, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth. In those cases, the Court ruled that employers are only strictly liable (that is, liable even in the absence of proof of fault) for supervisory harassment when it results in a tangible employment action taken against the victim such as a demotion, a cut in pay, or being fired. In such cases of “quid pro quo” harassment, the supervisor typically demands sexual favors and punishes the employee who refuses to provide them.
Harassment that culminates in a tangible employment action is not the norm. The vast majority of harassment cases allege “hostile environment” harassment, in which an action or series of actions had the effect of changing the work environment in an unacceptable way. In order to prevail on this type of claim, the plaintiff must show that unwelcome sexual or sex-based conduct was severe or pervasive and had the effect of creating a hostile, offensive, or abusive working environment. For this type of harassment, the Court has made clear that different rules of liability apply.
For hostile environment by co-workers or third parties, the employer is only liable if it knew or should have known of the harassment but failed to take prompt and effective remedial action. But when the hostile environment is created by a supervisor, the employer is more likely to be held liable. (The legal meaning of “supervisor” is discussed here.) In such cases, the employer is automatically liable to begin with—but then has the opportunity to avoid liability or damages by proving an affirmative defense.
The affirmative defense requires a two-pronged showing. First, the employer must show it took reasonable care to prevent and correct harassment. Second, it must also show that the victim unreasonably failed to take advantage of corrective opportunities, such as by using internal grievance procedures made available by the employer.
Favorite Farms’ Arguments in Favor of Summary Judgment—And Why They Failed
Favorite Farms argued that it was entitled to the benefit of the Faragher/Ellerth affirmative defense based solely on the undisputed facts in the record. (At the summary judgment stage of litigation, the party requesting relief must show that it is entitled to win based solely on facts viewed in the most favorable light to the other party.)
The company was right that the affirmative defense was in play here—the “harassment” (rape) was committed by the Salazar-Santiago’s direct supervisor and fits within the definition of hostile environment harassment. Thus, Favorite Farms is liable for the harassment unless it can prove both prongs of the affirmative defense. But whether it could do that was anything but clear based on the pre-trial record. The trial court, in fact, observed that this was not even a close case for summary judgment.
The first prong of the affirmative defense requires proof that the employer took reasonable measure both to prevent and correct problems of harassment. The prevention component is typically understood to require, at a minimum, the adoption and dissemination of a policy that prohibits harassment. Though training is not always understood as a required preventative measure, courts often note its presence or absence when making the determination whether the employer’s efforts were reasonable. In this case, however, the court noted that “it is entirely unclear whether Salazar-Santiago received Favorite Farms’ anti-harassment policy.” Moreover, 65% of this employer’s workforce speak only Mixteco, an indigenous language of Mexico, but the record made clear that the employer did not translate its policies into that language. So even if Salazar-Santiago received a copy of the policy, it was not likely to have meaningfully conveyed information to her. This, the court concluded, “casts doubt on whether Favorite Farms exercised reasonable care in the dissemination of its policies.”
The level of preventative care exercised by Favorite Farms seems particularly unreasonable given evidence that the company had knowledge of a prior sexual harassment complaint—involving almost identical circumstances and behavior—against Cruz that it failed to investigate.
The first prong of the affirmative defense also requires proof that the employer took reasonable measures to correct harassment. At a minimum, this means that employers must have established an internal grievance procedure for handling harassment complaints, and they must use it. A minimally acceptable process must include an investigation and, if appropriate, discipline for the harasser. Favorite Farms, however, just ignored the complaint, despite the severity of the alleged conduct. The company made no written record of Salazar-Santiago’s complaint and did not fully investigate the alleged rape until a year later, when the EEOC notified the company of its investigation. Salazar-Santiago, meanwhile, was left to protect herself through the justice system when the employer failed to provide help. She sought and received a restraining order against Cruz so that she would not have to work alongside him in the field.
Given this record, it was entirely appropriate for the court to deny the motion for summary judgment. As the court concluded, “a jury could find that Favorite Farms is not entitled to the Faragher/Ellerth defense.”
Did the Court Go Far Enough?
The affirmative defense requires the employer to prove both its own reasonable conduct in preventing and correcting harassment—and the plaintiff’s unreasonable conduct in failing to take advantage of corrective opportunities. The two prongs of the affirmative defense are joined with an “and” not an “or.” Why does this matter? The record in this case seems to be undisputed that Salazar-Santiago reported Cruz’s conduct promptly to Favorite Farms. It then sat on her complaint for a year. If this is true, the employer will not be able to prove that she unreasonably failed to complain. However misguided this may be, the entire liability system turns on victim reporting. People who fail to complain about harassment, or even delay slightly before complaining, are routinely denied redress for their injuries because courts hold that they have failed to take advantage of corrective opportunities. This is grossly unfair in many cases given the research showing that complaining about harassment is the least likely response—and that employees who do complain often fare worse in tangible ways than employees who don’t. This entire system should be reformed, but, under current law, an harassment victim who promptly reports misconduct should be given the law’s protection.
Although some courts have erroneously collapsed the two prongs and allowed employers to prevail based solely on their own reasonable conduct, Faragher and Ellerth could not be more clear that both prongs are required before the affirmative defense can be granted. A straightforward application of those precedents means that Favorite Farms cannot prevail on the affirmative defense even in the unlikely event it proves its own conduct was reasonable. Perhaps, then, the court should have granted summary judgment to the EEOC, which also moved for a ruling that would allow it a victory without a full trial.
Favorite Farms also sought summary judgment on Salazar-Santiago’s claim that she was retaliated against for complaining about the alleged rape. The company argued in its motion that “undisputed facts” demonstrated that she did not experience an adverse employment action sufficient to constitute retaliation under Title VII. Yet the record shows that shortly after she complained about Cruz’s behavior, she was suspended without pay. Not surprisingly, the record shows that even a short suspension imposed a hardship on an employee who works for only $5,000 a year and supports two young children. The company later decided to reimburse her for some of the unpaid time, but that did not alleviate the hardship caused by the initial withholding of pay. There is also evidence in the record about other actions taken against Salazar-Santiago that might have been the product of a retaliatory motive as well.
Retaliation is actionable separate and apart from the underlying discrimination. Under the Supreme Court’s 2006 ruling in Burlington Northern & Santa Fe Railway Company v. White, held that a “plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The district court was right to conclude that a jury might well find that standard to have been met here. A seasonal, low-wage worker might well choose to remain silent rather than complain about discrimination if her paycheck is on the line.
As the #MeToo movement has laid bare, anti-discrimination law is not sufficient to eliminate, or even substantially reduce, the incidence of sexual harassment at work. But it is a necessary piece of the foundation, and harassment survivors deserve the protection of federal courts. This court was right to give Salazar-Santiago her day in court.