The #MeToo movement has focused our collective attention on the persistent problem of sexual harassment. As I have written about in other columns (see here, here, and here), we have learned a great deal about the nature and scope of the problem, as well as the institutional practices that permitted so many serial harassers to stay in positions of power for years or even decades.
One question arising from the movement is how sexual harassment has managed to stay so common in the workplace, when the law has prohibited it and provided remedies to redress it for several decades. Although the answer to this question is complicated, one piece of it is the way in which federal antidiscrimination law has been developed in a way that rewards employers for taking cosmetic measures to deal with sexual harassment regardless of whether those measures are effective. Even some small changes would strengthen the law’s power against sexual harassment. Although many state antidiscrimination laws simply mimic the federal protections, some go further—and show the power of tougher standards of liability. A recent case arising under Massachusetts law, Romero v. McCormick & Schmick Restaurant Group, illustrates this point.
Antics at Fanueil Hall
The Romero case arises out of a complaint of sexual harassment by employees at a fish restaurant operating at Boston’s Fanueil Hall, a popular tourist destination with stores and restaurants. Several employees who worked in the kitchen (called the “back of the house”) filed a lawsuit revolving around allegations of sexual harassment by Roman Buruca, the Sous Chef, and a co-worker. The back-of-the-house was managed by the Executive Chef, and the Sous Chef who reported to him. The Executive Chef was responsible for scheduling, hiring, firing, training, and conducting performance evaluations of employees. The Sous Chef had more limited authority, including the power to cut an employee’s hours and some control over scheduling and inventory.
The allocation of managerial responsibilities matters because the standard for liability differs based on whether the alleged harasser is considered a supervisor or a co-worker. The plaintiffs sought summary judgment in this case on this issue, arguing that the undisputed facts proved Buruca to be a supervisor. The court agreed, ruled Buruca a supervisor, and pushed the case to the next stage: a trial at which plaintiffs need to prove the harassment they alleged actually occurred.
Employer Liability for Sexual Harassment: Federal Law
Why is it so important to know whether Buruca is a supervisor? Employer liability for sexual harassment varies based on the position held by the harasser. It matters even more under Massachusetts law, which provides greater protection to employees than does federal law.
Let’s consider liability for sexual harassment under federal law first.
In the Supreme Court’s first harassment case, Meritor Savings Bank v. Vinson, it held that sexual harassment in the workplace is a form of intentional sex discrimination under Title VII of the Civil Rights Act of 1964. It held that both “quid pro quo” (e.g., “sleep with me or you’re fired”) and hostile-environment forms of harassment were actionable. The Court was asked to determine the circumstances under which employers should be held liable for harassment that did occur, but it declined to issue a definitive ruling on that question. It stated that a rule of automatic liability was too harsh for employers, and a rule that permitted liability only when the employers had actual notice the harassment was occurring was too harsh for victims. The Court then directed lower courts to apply “agency principles”—that is, the law of a principal, and the person or entity that acts on behalf of that principal—when determining whether employers should be held liable for any particular type or incidence of harassment.
As a result of the ruling in Meritor, sexual harassment cases involved two steps. First, a plaintiff had to prove that actionable harassment occurred. Second, a plaintiff had to prove that there was some basis for holding the employer liable for the harm. But the legal standard for the second step was not clear until more than a decade after Meritor, when the Court considered the issue of liability again.
In 1998, the Supreme Court issued two rulings on employer liability on the same day, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth. In a joint holding, the Court ruled that for supervisory harassment culminating in a tangible employment action, such as a demotion or firing, employers are automatically liable. For supervisory harassment that does not result in a tangible employment action (the more common kind), the Court also imposed automatic liability, but it created a two-pronged affirmative defense that a defending employer may raise. As the Court explained, 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 preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
Although Faragher and Ellerth both involved harassment by supervisors, the Court also indirectly approved the application of a negligence standard—the standard asking if the employer knew or should have known of, and failed to respond to, claims of co-worker or third-party harassment. It also noted a special standard of strict liability for harassment by a high-ranking person within an organization—so-called alter ego liability.
It can be helpful to think of a hierarchy of liability:
- Harassment so pervasive at high levels that it is tantamount to a policy of harassment—direct, strict liability
- Harassment by alter ego of employer—direct, strict liability
- Supervisory harassment that results in a tangible employment action—vicarious liability, no defenses
- Supervisory harassment that does not result in a tangible employment action—vicarious liability subject to affirmative defense
- Harassment by co-worker or third party—negligence liability
The Faragher/Ellerth rulings generated as many questions as they resolved. Much of the resulting litigation has focused on the scope and application of the affirmative defense, which employers can use to avoid the automatic liability that would otherwise result from supervisory harassment. And the body of law that developed made it relatively easy for employers to avoid liability for harassment, often by way of the affirmative defense.
Because the standard of liability was different for supervisory harassment, it became important to determine who qualified as a “supervisor.” The EEOC, the federal agency charged with enforcing Title VII, issued an enforcement guidance in 1999 in the wake of Faragher and Ellerth. Under that guidance, an employee who has the “authority to direct [the victim’s] daily work activities” or the power “to recommend,” though not personally affect, “tangible employment decisions” qualifies as a supervisor because his or her ability to harass “is enhanced by his or her authority to increase the employee’s workload or assign undesirable tasks.”
In 2012, however, the Supreme Court issued an opinion in Vance v. Ball State University, in which it adopted a narrower definition of “supervisor” for Title VII cases. It held that a harasser does not qualify as a supervisor unless he or she has the power to “take tangible employment actions against the victim”—colloquially, the power to hire and fire. It rejected the EEOC’s approach as “nebulous” and unpersuasive; it chose a standard it thought was more “workable” and that would not require a “highly case-specific evaluation of numerous factors” that “would frustrate judges and confound jurors.”
But as Justice Ginsburg wrote in dissent, the Court adopted a rule that made it even harder to establish liability for sexual harassment. In so doing, it “diminishe[d] the force of Faragher and Ellerth, ignore[d] the conditions under which members of the work force labor, and disserve[d] the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces.” Her dissent focused on the realities of the workplace, which were better captured by Faragher and Ellerth than by the ruling in Vance. As she wrote:
Exposed to fellow employee’s harassment, one can walk away or tell the offender to “buzz off.” A supervisor’s slings and arrows, however, are not so easily avoided. An employee who confronts her harassing supervisor risks, for example, receiving an undesirable or unsafe work assignment or an unwanted transfer. She may be saddled with an excessive workload or with placement on a shift spanning hours disruptive of her family life. And she may be demoted or fired.
Her point was well taken; it is not only the manager with the authority to hire and fire who wields power sufficient to aid him in harassing subordinate employees.
Employer Liability for Sexual Harassment: Massachusetts Law
Like many states, Massachusetts has an antidiscrimination law that is similar to Title VII. But the Massachusetts Supreme Judicial Court, the state’s highest court, has interpreted its law, Massachusetts General Laws § 151B, to be more protective of sexual harassment victims than Title VII.
The biggest difference between § 151B and Title VII is that the former imposes strict liability for sexual harassment by supervisors without providing an affirmative defense. In effect, once a plaintiff proves that a supervisor committed an actionable form of harassment, the plaintiff wins. In Title VII cases, the affirmative defense operates strongly in favor of employers, and makes it difficult for plaintiffs to win even when they have suffered egregious, preventable harm. The court in Massachusetts intentionally chose a standard that would hold employers responsible for the actions of those they chose to trust with authority.
The Massachusetts law also defines supervisory harassment expressly to include the failure to protect a subordinate employee from harassment, which goes beyond the definition of actionable harassment under Title VII. And, it imposes strict liability for supervisor misconduct even if the person harassed is not subordinate to that particular supervisor.
Finally, the court in Romero adopts a definition of supervisor that is broader than the one adopted by the Supreme Court in Vance. It did this in part because the state analog to the EEOC, the Massachusetts Commission Against Discrimination (MCAD), had issued guidelines with a broad definition of supervisors. The guidelines provide a non-exhaustive list of factors that can indicate supervisory status, including “distributing necessary supplies and tools” and “giving direction.” MCAD explicitly refers to the 1999 EEOC guidelines with approval—the ones the Supreme Court ignored in Vance.
In Romero, the court drew on an earlier case and endorsed a much more realistic standard for assessing power. “To find an employer strictly liable for a putative supervisor’s sexual harassing conduct,” the court wrote, “the putative supervisor need not have the power to hire, fire, demote, promote, transfer or discipline an employee, but must have some ‘modicum of authority,’ such as the authority to assign work, impose particularly exacting scrutiny, or a responsibility to protect other workers from sexual harassment.”
This standard avoids the problems identified by Justice Ginsburg in Vance and makes it possible for employees to prevail in many more cases in which they are able to prove they suffered actionable harassment.
As applied to the alleged misconduct in the kitchen at McCormick & Schmick, the court held that Buruca clearly had “more than a modicum of authority.” He was a member of management, with authority expressly delegated by the Executive Chef, while the plaintiffs were all in non-management positions. Buruca received training offered only to managers; he had access to and entered shift notes about performance, budgeting, and staffing; he oversaw the work of many staff members in the “back of the house”; he scrutinized the work of kitchen staff and provided instruction; he took on the management responsibilities of the Executive Chef when they worked different shifts; and he understood he was responsible for making sure company rules were filed. Moreover, Buruca had been told by human resources that he was responsible for intervening when he observed or learned of sexual harassment among co-workers and was warned not to retaliate if any of them complained.
All told, the court concluded that the plaintiffs had established that Buruca had enough authority to be treated as a supervisor for purposes of sexual harassment liability. It granted summary judgment to the plaintiffs on that issue, reserving for trial the question whether the harassment occurred as alleged.
The definition of a “supervisor” may seem like a small issue, but it is one of several questions where a narrow answer from lower federal courts has meant that plaintiffs have a very difficult time prevailing in sexual harassment cases under Title VII. The approach under the Massachusetts law avoids many of these issues by imposing strict liability without an affirmative defense and by crafting a realistic definition of supervisory power. This keeps the focus where it should be—on whether the plaintiff was victimized by sexual misconduct in the workplace. The law does not have the power to eradicate the sexist attitudes and behaviors that make sexual harassment such a salient part of the workplace today, but it does have the power to hold institutions liable when they delegate authority to those who abuse it.