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07/27/77 Paulette L. Barnes, v. Douglas M. Costle

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


July 27, 1977

PAULETTE L. BARNES, APPELLANT

v.

DOUGLAS M. COSTLE, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY 1977.CDC.163

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 1828-73).

APPELLATE PANEL:

Bazelon, Chief Judge, and Robinson and MacKinnon, Circuit Judges. Opinion for the Court filed by Circuit Judge Robinson. Concurring Opinion filed by Circuit Judge MacKinnon.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON

This appeal launches a review of an order of the District Court awarding a summary judgment to appellee *fn1 on the ground that Title VII of the Civil Rights Act of 1964, *fn2 as amended by the Equal Employment Opportunity Act of 1972, *fn3 does not offer redress for appellant's complaint that her job at the Environmental Protection Agency was abolished because she repulsed her male superior's sexual advances. *fn4 We reverse. I

Appellant, a black woman, was hired by the director of the Agency's equal employment opportunity division, who also is black, as his administrative assistant at grade GS-5. During a pre-employment interview, she asserts, he promised a promotion to grade GS-7 within ninety days. Shortly after commencement of the employment, she claims, the director initiated a quest for sexual favors by "(a) repeatedly soliciting [her] to join him for social activities after office hours, notwithstanding [her] repeated refusal to do so; (b) by making repeated remarks to [her] which were sexual in nature; (c) by repeatedly suggesting to [her] that if she cooperated with him in a sexual affair, her employment status would be enhanced." *fn5 Appellant states that she "continually resisted [his] overtures . . . and finally advised him that notwithstanding his stated belief that many executives 'have affairs with their personnel', she preferred that their relationship remain a strictly professional one." *fn6 Thereafter, she charges, the director "alone and in concert with other agents of [appellee], began a conscious campaign to belittle [her], to harass her and to strip her of her job duties, all culminating in the decision of [appellee's] agent . . . to abolish [her] job in retaliation for [her] refusal to grant him sexual favors." *fn7 These activities, appellant declares, "would not have occurred but for [her] sex." *fn8

After seeking unsuccessfully an informal resolution of the matter, appellant, acting pro se, filed a formal complaint alleging that the director sought to remove her from his office when she "refused to have an after hour affair with" him. *fn9 The complaint charged discrimination based on race rather than gender, *fn10 a circumstance which appellant attributes to erroneous advice by agency personnel. *fn11 A hearing on the complaint was conducted by an appeals examiner, who excluded proffered evidence of sex discrimination and found no evidence of race discrimination. *fn12 In its final decision, the Agency concurred in the examiner's finding. *fn13

Appellant then obtained counsel and appealed to the Civil Service Commission. There, appellant's attorney requested the Board of Appeals and Review to reopen the record to enable the presentation of sex-discrimination evidence. *fn14 The Board, however, affirmed the agency's negative finding on race discrimination and refused the request to reopen on the ground that appellant's allegations did not bring the case within the purview of the Commission's regulations implementing Title VII. *fn15

Thereafter, appellant filed her complaint in the District Court, confining her theory, by allegations to which we have averted, *fn16 to sex discrimination violative of Title VII and the Fifth Amendment. *fn17 The court, limiting the inquiry to reexamination of the administrative record, *fn18 granted appellee's motion for summary judgment in the view that "the alleged discriminatory practices are not encompassed by the Act." *fn19 The "alleged retaliatory actions of [appellant's] supervisor taken because [appellant] refused his request for an 'after hour affair,'" the court held, "are not the type of discriminatory conduct contemplated by the 1972 Act." *fn20 The court reasoned:

The substance of [appellant's] complaint is that she was discriminated against, not because she was a woman, but because she refused to engage in a sexual affair with her supervisor. This is a controversy underpinned by the subtleties of an inharmonious personal relationship. Regardless of how inexcusable the conduct of [appellant's] supervisor might have been, it does not evidence an arbitrary barrier to continued employment based on [appellant's] sex. *fn21

The appeal to this court then followed. II

By adoption of Title VII of the Civil Rights Act of 1964, *fn22 Congress made it an unlawful employment practice for non-governmental employers, with exceptions not presently relevant, *fn23 "to . . . discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual's . . . sex . . . ." *fn24 Unfortunately, the early history of that legislation lends no assistance to endeavors to define the scope of this prohibition more precisely, if indeed any elucidation were needed. It was offered as an addition to other proscriptions by opponents in a last-minute attempt to block the bill which became the Act, *fn25 and the bill, with the amendment barring sex-discrimination, then quickly passed. *fn26 Thus, for an eight-year period following its original enactment, there was no legislative history to refine the congressional language.

When, however, the 1964 Act was amended by the Equal Employment Opportunity Act of 1972, *fn27 there was considerable discussion on the topic. Not surprisingly, it then became evident that Congress was deeply concerned about employment discrimination founded on gender, and intended to combat it as vigorously as any other type of forbidden discrimination. The report of the House Committee on Education and Labor declared in ringing tones that the statute - eight years after passage - still had much to accomplish in order to elevate the status of women in employment: *fn28

Numerous studies have shown that women are placed in the less challenging, the less responsible and the less remunerative positions on the basis of their sex alone.

Such blatantly disparate treatment is particularly objectionable in view of the fact that Title VII has specifically prohibited sex discrimination since its enactment in 1964. *fn29

The Committee emphasized that women's employment rights are not "judicial divertissements," *fn30 and that "discrimination against women is no less serious than other forms of prohibited employment practices and is to be accorded the same degree of social concern given to any type of unlawful discrimination." *fn31 The report of the Senate Committee on Labor and Public Welfare reveals a similar commitment to eradication of sex discrimination: *fn32

While some have looked at the entire issue of women's rights as a frivolous divertissement, this Committee believes that discrimination against women is no less serious than other prohibited forms of discrimination, and that it is to be accorded the same degree of concern given to any type of similarly unlawful conduct. As a further point, recent studies have shown that there is a close correlation between discrimination based on sex and racial discrimination, and that both possess similar characteristics. *fn33

Not unexpectedly, then, during the thirteen years since enactment of Title VII it has become firmly established that the Act invalidates all "artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of . . . impermissible classification[s]." *fn34 Title VII has been invoked to strike down a wide variety of impediments to equal employment opportunity between the sexes, including insufficiently validated tests, *fn35 discriminatory seniority systems, *fn36 weight-lifting requirements, *fn37 and height and weight standards solely for those of one gender. *fn38 Congress could hardly have been more explicit in its command that there be no sex-based discrimination "against any individual with respect to his . . . terms, conditions, or privileges of employment . . . ." *fn39

The equal employment measures of the Civil Rights Act of 1964 did not apply to the Federal Government. *fn40 The amendments to Title VII effected by the Equal Employment Opportunity Act of 1972, however, extended the substantive protections of the 1964 Act to federal as well as state and local employees. *fn41 In the federal domain, the 1972 Act provides in relevant part that

all personnel actions affecting employees or applicants for employment . . . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, sex or national origin. *fn42

To be sure, the language of the 1964 Act in reference to private employees differs somewhat from that of the 1972 Act respecting federal employees. But it is beyond cavil that Congress legislated for federal employees essentially the same guarantees against sex discrimination that previously it had afforded private employees. *fn43 We thus proceed to an examination of appellant's claim with the assurance that anything constituting sex discrimination in private employment is equally interdicted in the federal sector. *fn44 III

Title VII now requires, inter alia, that "all personnel actions affecting employees . . . in [federal] executive agencies . . . shall be made free from any discrimination based on . . . sex . . . ." *fn45 It is not argued, nor plausibly could it be, that elimination of appellant's then position within the Environmental Protection Agency was not a "personnel action" within the contemplation of this provision. *fn46 Nor can it be doubted that the action effected a "discrimination" - a difference in treatment - against appellant vis-a-vis other employees of the Agency, since there is no indication that the position of any other employee of the agency was similarly eliminated. The question debated, and the issue pivotal on this appeal, is whether the discrimination, in the circumstances described by appellant, was as a matter of law "based on . . . sex . . . ." *fn47

We start with the statute as written, and, so measured, we think the discrimination as portrayed was plainly based on appellant's gender. Her thesis, in substance, is that her supervisor retaliated by abolishing her job when she resisted his sexual advances. More particularly, she states that he repeatedly told her that indulgence in a sexual affair would enhance her employment status; that he endeavored affirmatively but futilely to consummate his proposition; and that, upon her refusal to accede, he campaigned against her continued employment in his department and succeeded eventually in liquidating her position. *fn48 So it was, by her version, that retention of her job was conditioned upon submission to sexual relations -an exaction which the supervisor would not have sought from any male. *fn49 It is much too late in the day to contend that Title VII does not outlaw terms of employment for women which differ appreciably from those set for men, *fn50 and which are not genuinely and reasonably related to performance on the job. *fn51

The District Court felt, however, that appellant's suit amounted to no more than a claim "that she was discriminated against, not because she was a woman, but because she refused to engage in a sexual affair with her supervisor." *fn52 In similar vein, appellee has argued that "appellant was allegedly denied employment enhancement not because she was a woman, but rather because she decided not to furnish the sexual consideration claimed to have been demanded." *fn53 We cannot accept this analysis of the situation charged by appellant. But for her womanhood, from aught that appears, her participation in sexual activity would never have been solicited. *fn54 To say, then, that she was victimized in her employment simply because she declined the invitation is to ignore the asserted fact that she was invited only because she was a woman subordinate to the inviter in the hierarchy of agency personnel. *fn55 Put another way, she became the target of her superior's sexual desires because she was a woman, and was asked to bow to his demands as the price for holding her job. The circumstance imparting high visibility to the role of gender in the affair is that no male employee was susceptible to such an approach by appellant's supervisor. *fn56 Thus gender cannot be eliminated from the formulation which appellant advocates, and that formulation advances a prima facie case of sex discrimination within the purview of Title VII.

It is clear that the statutory embargo on sex discrimination in employment is not confined to differentials founded wholly upon an employee's gender. On the contrary, it is enough that gender is a factor contributing to the discrimination in a substantial way. *fn57 That this was the intent of Congress is readily apparent from a small but highly significant facet of the legislative history of Title VII. When the bill incorporating Title VII was under consideration in 1964, an amendment that would have expressly restricted the sex ban to discrimination based solely on gender was defeated on the floor of the House. *fn58 Like the Fifth Circuit, we take this as an indication of congressional awareness of the debilitating effect that such a limitation would have had on any attempt to stamp out sex-based factors irrelevant to job competence. *fn59

Interpretations of the Act, both judicial and administrative, more than adequately reflect this understanding and appreciation of the legislative purpose. In Phillips v. Martin Marietta Corporation, *fn60 the Supreme Court held that a company's refusal of employment to mothers but not to fathers of pre-school-age children was prima facie sex discrimination within the meaning of Title VII. *fn61 Not all women were excluded from the employment, but only those who had pre-school-age children. Nonetheless, since gender was a criterion in the determination of employability, a prima facie violation of Title VII was shown. *fn62 Other courts, in analogous contexts, have similarly concluded that distinctions predicated only partly though firmly on gender are covered by Title VII's ban on sex discrimination. *fn63 And an administrative interpretation of the Act commanding deference *fn64 is the Equal Employment Opportunity Commission's pronouncement that "so long as sex is a factor in the application of" an employer's rule forbidding marriage by female employees, "such application involves a discrimination based on sex." *fn65

In all of these situations, the objectionable employment condition embraced something more than the employee's gender, but the fact remained that gender was also involved to a significant degree. For while some but not all employees of one sex were subjected to the condition, no employee of the opposite sex was affected; and that is the picture here. *fn66 It does not suffice to say, as the District Court did, that appellant's position was eliminated merely because she refused to respond to her supervisor's alleged call for sexual favors. *fn67 Appellant's gender, just as much as her cooperation, was an indispensable factor in the job-retention condition of which she complains, absent a showing that the supervisor imposed a similar condition upon a male co-employee. *fn68

We also note that, in disposing of this case, the District Court referred to it as "a controversy underpinned by the subtleties of an inharmonious personal relationship." *fn69 Were we satisfied that this characterization was but a part of the reasoning underlying the court's ruling that the discrimination was not sex-based, we would have no need to address it further. *fn70 The fact is, however, that we are uncertain as to the reach of the court's observation, and concerned about implications to which it is susceptible.

If the court meant that the conduct attributed to appellant's supervisor fell outside Title VII because it was a personal escapade rather than an agency project, no support for a summary judgment could be derived therefrom. Generally speaking, an employer is chargeable with Title VII violations occasioned by discriminatory practices of supervisory personnel. *fn71 We realize that should a supervisor contravene employer policy without the employer's knowledge and the consequences are rectified when discovered, the employer may be relieved from responsibility under Title VII. *fn72 But, so far as we are aware, the agency involved here is not in position to claim exoneration on that theory.

If, on the other hand, the court was saying that there was no actionable discrimination because only one employee was victimized, we would strongly disagree. A sex-founded impediment to equal employment opportunity succumbs to Title VII even though less than all employees of the claimant's gender are affected. *fn73 The protections afforded by Title VII against sex discrimination are extended to the individual, *fn74 and "a

At no time during our intensive study of this case have we encountered anything to support the notion that employment conditions summoning sexual relations between employees and superiors are somehow exempted from the coverage of Title VII. *fn81 The statute in explicit terms proscribes discrimination "because of . . . sex," *fn82 with only narrowly defined exceptions completely foreign to the situation emerging here. *fn83 The legislative history similarly discloses a congressional purpose to outlaw any and all sex-based discrimination, *fn84 equally with any other form of discrimination which Title VII condemns. *fn85 Beyond these considerations, the courts have consistently recognized that Title VII must be construed liberally to achieve its objectives; *fn86 as we ourselves recently noted, it "requires an interpretation animated by the broad humanitarian and remedial purposes underlying the federal proscription of employment discrimination." *fn87 It would be pointless to speculate as to whether Congress envisioned the particular type of activity which the job-retention condition allegedly levied on appellant would have exacted. As Judge Goldberg of the Fifth Circuit has so well put it,

Congress chose neither to enumerate specific discriminatory practices, nor to elucidate in extenso the parameter of such nefarious activities. Rather, it pursued the path of wisdom by being unconstrictive, knowing that constant change is the order of our day and that the seemingly unreasonable practices of the present can easily become the injustices of the morrow. *fn88

Against this backdrop, we cannot doubt that Title VII intercepts the discriminatory practice charged here. *fn89 The judgment appealed from is accordingly reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion. *fn90

Reversed and remanded.

CASE RESOLUTION

Reversed and remanded. IN AGREEMENT

MacKINNON, Circuit Judge, concurring:

I concur in the remand of this case, but would narrowly limit the area in which petitioner can assert her claim against the Environmental Protection Agency. In support of that position, I offer the following analysis of vicarious liability of an employer for acts of its agents.

The liability of an employer for sexual harassment imposed on an employee by a supervisor requires reference to the law of agency and tort, as well as statutory interpretation. The starting point must be that supervisors act, generally, as agents of the employer. In certain circumstances, the relationship can be closer, so that the supervisor could be termed a servant of the employer.

An act of sexual harassment which caused the victim, because of her rejection of such advances, to be damaged in her job, would constitute a tort. Four other district courts have considered the question presented here; each has started from (and two have proceeded no further than) a tort perspective. Tomkins v. Public Service Electric & Gas Co., 13 F.E.P.C. 1574 (D.N.J. 1976); Williams v. Saxbe, 12 F.E.P.C. 1093 (D.D.C. 1976); Miller v. Bank of America, 418 F. Supp. 233 (N.D. Cal. 1976); Corne v. Bausch & Lomb, 390 F. Supp. 161 (D. Ariz. 1975). Where sexual favors are solicited in return for job benefits or under retaliatory threats to expose one's deficiencies on the job, the gravity of the incident might also constitute a violation of the criminal laws.1 On the civil side, a question arises whether a principal can be held liable for the tort of the agent.

Under general rules of agency, "A Master is not subject to liability for the torts of his servants acting outside the scope of their employment." Restatement (Second) of Agency § 219(2) (1958). The present case offers no suggestion that the sexual harassment was even arguably within the scope of employment and certainly it would not be so understood by any federal employee. The sexual harassment furthered no objective of the government agency, nor was it part of the supervisor's actual or ostensible authority, nor was it even within the outermost boundaries of what could be perceived to be his apparent authority.

To the general rule, however, the Second Restatement of Agency attaches four exceptions. The first three involve situations where culpability would naturally apply to the principal: "(a) the master intended the conduct or the consequences, or (b) the master was negligent or reckless, or (c) the conduct violated a non-delegable duty of the master. . . ." None of these are here relevant, though if the government had prior knowledge of the offending supervisor's propensity for sexual harassment of subordinate employees, liability might be based on negligence or reckless conduct. The fourth exception considers situations where "the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation." Restatement (Second) of Agency (supra).

The exception is stated in the disjunctive. The first part has no application here - it could not be reasonably believed by an employee that the supervisor's demands derived from the employer or that in complying with such demands the employee actually relied upon the authority of the employer. Concerning the second part of the exception, at first reading it seems to argue too much. In every case where vicarious liability is at issue, the agent will have been aided in some way in committing the tort by the position that he holds. In this case, the male supervisor would not have been in a position to ask petitioner for an "after-hours affair" were it not for his position as her immediate "boss."

The examples provided in the Restatement commentary, however, indicate that a narrower concept is involved. The tort must be one accomplished by an instrumentality, or through conduct, associated with the agency status.

In other situations, the servant may be able to cause harm because of his position as agent, as where a telegraph operator sends false messages purporting to come from third persons. . . . Again, the manager of a store operated by him for an undisclosed principal is enabled to cheat the customers because of his position.

Restatement (Second) of Agency § 219 Comment at 485.

The telegraph operator commits the tort via a telegraph message; the store manager commits the tort through the way he charges for what he sells. If the supervisor falsified the report of the quality of the female employee's work, that might (arguably) be a tort of defamation within the stated exception; but the tort involved in the sexual advance is committed entirely outside of the employment milieu.

Turning to the master-servant vicarious liability in tort law, the same conclusion is reached. Again, the first hurdle is to determine whether the activity is within the scope of employment. It was not so in this case. There might still be a possibility of holding the master liable for acts outside of the scope of that employment. The exception is stated with an example of another kind of tort in W. L. Prosser, Handbook of the Law of Torts (4th ed. 1971) 465-66:

The most difficult questions arise where the servant, for strictly personal reasons and not in furtherance of his employment, loses his temper and attacks the plaintiff in a quarrel which arises out of the employment. . . . Here, unless some non-delegable duty can be found, the older rule denied recovery, and this is still the holding of the majority of the decisions. There has been a tendency in the later cases, however, to allow recovery on the ground that the employment has provided a peculiar opportunity and even incentive for such loss of temper; and there have been California decisions which have found something of an analogy to the workmen's compensation acts, and have considered that the intentional misconduct arises out of and in the course of the employment.

Even if this court were to join what is admittedly a minority of jurisdictions on this point, the exception would not here apply. While the supervisor has been provided with an opportunity by the agency, it is no more than would be afforded by any employment setting, and can hardly be said to comprise an "incentive" for such tortious conduct.

There being no basis for liability by the employer in a situation like the one presented in this case, under the general law of agency and tort, there is even less basis for vicarious liability if the supervisor's action were characterizable under the criminal law. See Restatement (Second) of Agency § 231.

Analysis of liability of an employer for violation of Title VII takes us beyond the common law of agency and tort, but the rules operative in those spheres provide a necessary starting point. From this basis, we are led to the conclusion that, if liability is to be placed upon an employer, it must be because of the wording and policy of the legislation. Without the interposition of statutory law, the common law would impute no liability.

Title VII includes in its definition of employer "any agent" of one who fits the general definition. 42 U.S.C. § 2000e(b).2 The District Court in Tomkins v. Public Service Electric & Gas Co. (supra) emphasized the reference to agent in the general definition, though eventually that court found that the sexual advances involved there were outside the purview of the supervisor's authority:

Insofar as the quoted language suggests that acts done for the private benefit of an individual supervisor cannot be imputed to the Employer for the purpose of finding a violation of Title VII, this Court respectfully disagrees. If a supervisor is acting within the purview of his authority, the doctrine of respondeat superior may be employed whether he is driving a company car or victimizing a female. See Title 42 United States Code, § 2000e(b) which expressly includes any agent of an employer within the meaning of "employer."

The other significant legislative scheme governing employer-employee relations, the National Labor Relations Act, defines employer in a similar way: "The term 'employer' includes any person acting as an agent of an employer, directly or indirectly." 29 U.S.C. § 152(2) (1970). To the extent that the term "agency" is used, however, the usual principles of agency are invoked; and, as has been seen, those rules would deny government liability as an employer in a case such as this. The supervisor is not acting as an agent when he commits the tort complained of; hence, no unlawful employment practice has been committed by the "employer."

However, the action complained of does not terminate with the mere sexual advance. In the present case, and in others of this type, it is alleged that the employee's refusal to comply led the supervisor to take unfavorable employment-related actions against her. If those employment-related actions were unjustified, then the issue arises of holding the employer liable for those actions. Even where the tort complained of arose in the employment setting, if it was not committed within the scope of the supervisor's authority, the employer will not be liable.

A different interpretation has been followed, however, where the tortious conduct is also violative of the National Labor Relations Act. While granting fullest rein to an employer's discretion to hire, promote, or fire for a "good reason, a bad reason, or no reason at all," that statute, as interpreted by the courts, delineates certain impermissible reasons (such as discrimination for or against union members); and when those impermissible reasons are involved, the normal rules of vicarious liability are not applied. For example, if a supervisor singles out union members for abusive treatment, neither actual nor constructive knowledge by the personnel director is required to find a section 8(a)(3) violation. The supervisor might even be acting outside the scope of his employment and contrary to the announced policy of the employer, still, to hold that no violation occurred "would provide a simple means for evading the Act by a division of corporate functions." Allegheny Pepsi-Cola Bottling Co. v. NLRB, 312 F.2d 529, 531 (3d Cir. 1962). This approach has even been extended so far as to find a violation in the combination of two acts, by two different members of management, where each was itself permissible.3

As it is a departure from the common law rule, the approach to liability adopted by courts applying the National Labor Relations Act must be carefully scrutinized to determine whether it should be followed in a related, but significantly distinct context.

First, whatever reliance can be drawn from the legislative history of the National Labor Relations Act, and its statement of policy to encourage collective bargaining, is inapplicable to Title VII. Combing the legislative history of the Civil Rights Act turns up no direct statement that employers are to be vicariously liable.

However, the Supreme Court has found that "The objective of Congress in the enactment of Title VII is plain from the language of the statute," Griggs v. Duke Power Co., 401 U.S. 424, 429, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), and relying on that language alone, has developed strong rules of employer liability. See, e. g., Franks v. Bowman Transportation Co., 424 U.S. 747, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976) (retroactive seniority relief required, despite section 703(h) of Title VII); Albemarle Paper Co. v. Moody, 422 U.S. 405, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975) (backpay even in the absence of bad faith); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) (prima facie case met, even in particular case, with no showing of intent to discriminate); Griggs v. Duke Power Co., 401 U.S. 424, 432, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971) ("Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question").

Accordingly, what legislative history cannot itself supply has been suggested by a reading of the statute's intent from its overall scheme. Common elements may be found between the liability for employer conduct under Title VII and employer liability, as traced above, under the National Labor Relations Act. Generally, liability has been premised on one of three (non-exhaustive) rationales: 1) if ambiguous conduct might be violative of the statute, the employer is in the best position to know the real cause, and to come forward with an explanation; 2) the employer, not the employee, can establish prophylactic rules which, without upsetting efficiency, could obviate the circumstances of potential discrimination; 3) the type of conduct at issue is questionable at best, and it is not undesirable to induce careful employers to err on the side of avoiding possibly violative conduct.

The first rationale is the premise behind many Title VII cases involving subjective decision-making. See, e. g., United States v. N.L. Industries, Inc., 479 F.2d 354, 368 (8th Cir. 1973); Rowe v. General Motors Corp., 457 F.2d 348, 358 (5th Cir. 1972). For a fine analysis of contemporary Title VII law, see Lopatka, A 1977 Primer on the Federal Regulation of Employment Discrimination, 1977 U.ILL.L.FOR. 69 (1977), especially at 89 (subjective decisions). See also Stacy, Subjective Criteria in Employment Decisions Under Title VII, 10 GEORGIA L.REV. 732 (1976). This rationale also seems to underlie the Supreme Court's strict formulation of liability in the related field of jury discrimination: when the percentages show a large disparity, it is for the state or county to offer explanations. See, e. g., Castaneda v. Partida, 45 U.S.L.W. 4302 (U.S. March 23, 1977); Alexander v. Louisiana, 405 U.S. 625, 31 L. Ed. 2d 536, 92 S. Ct. 1221 (1972); Turner v. Fouche, 396 U.S. 346, 359-360, 24 L. Ed. 2d 567, 90 S. Ct. 532 (1970).

The second rationale finds clearest expression in the Supreme Court's decisions involving employment testing. Although explicitly permitted by Title VII, 42 U.S.C. § 2000e-2(h) (1970), the Court's approach in Griggs v. Duke Power Co. (supra) and Albemarle Paper Co. v. Moody, 422 U.S. 405, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975) has displayed a great suspicion.4 Employers who use general knowledge or aptitude tests are not inherently discriminating, but such tests can be made more or less relevant and fair, and it is the employer who controls their imposition. Hence, if discrimination results, he must answer.

In labor relations law under the National Labor Relations Act, the second rationale has also been influential. Even though an employer has a statutory (and constitutional) right to address his employees on the likely effects of a union takeover, predictions about economic consequences of unionization are fraught with potential for implied or actual threat. If such threats develop, the employer is liable. This is so even if it is his supervisors who make the threats, since making predictions is inherently dangerous and the employer could have instructed his supervisors simply to avoid making predictions in talking with employees. See generally NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969).

The National Labor Relations Act also provides several examples of the third rationale. That rationale underlies the rule adopted by the National Labor Relations Board, and sanctioned by the courts, Peerless Plywood Co., 107 NLRB 427 (1953), whereby employer speeches within 24 hours before the scheduled time of an election are prohibited. Not every employer speech during that time period is coercive, but it is not a severe burden to require that employers order their campaigns without relying on that particular tactic. On the union side, the use of "dual-purpose" authorization cards provide a comparable example of an intrinsically troublesome device, and the Board, and the courts, have seen no harm in inducing an avoidance of the practice.

These general principles by no means exhaust the guiding rules of employer liability in labor relations law, but they do provide a structure useful for focusing on whether respondeat superior should be imposed in a particular case. Different conclusions result in varying Title VII contexts.5 Where sexual advances are involved, it must be candidly recognized at the outset that, even when directed from a supervisor who would be difficult to refuse, the advances themselves might be welcome. It cannot be presumed as a matter of law that the employee is subjected to disfavorable treatment because of the advances. Once it is established, however, that the employee has no interest in the proposal, then the employee may suffer from the continuation of advances. And the eventual damage to her job for failing to accede, if that is a result, is undeniably harmful.

1. The rationale of an employer's better position to know. Unlike the case of a standardized employment test, the employer or higher supervisor is not in the best position of anyone to know whether an employee has been unjustly damaged on her job. The sexual advance of a supervisor toward an employee is seldom a public matter; and the distinction between invited, uninvited-but-welcome, offensive-but-tolerated and flatly rejected advances ordinarily does not fall within the special ability of the employer or higher supervisor to discern.

However, once a complaint of offensive advances has been made, the employer's role becomes far more serious. One of the four district court opinions (besides the one currently before us) that have considered sexual advances, based employer liability precisely on this phase of the incident, "When a female employee registers a complaint of sexual abuse and the company chooses to fire her rather than investigate, the corporate response may constitute discrimination based on sex." Tomkins v. Public Service Electric & Gas Co. (supra).

In the present case, the complaint fairly includes allegations that the plaintiff's supervisor, whose sexual advances had been spurned, induced other agents of the Environmental Protection Agency to punish her (complaint at J.A. 29); that the Agency was guilty of wrongful action in presecuting her complaint, informing her that she should not bring a sex but only a race discrimination claim (J.A. 30);6 that the Civil Service Commission collaborated in frustrating her claim by refusing as a matter of law to reopen the hearings for evidence of sex discrimination (J.A. 31); that "agents and employees of the defendant" retaliated against her for having filed an EEO complaint (J.A. 37, 44 -Count II of Amended Complaint); and that harassment both for refusing sexual advances and for filing the EEO complaint was not only imposed by the supervisor who had made the advances, but also by "other supervisors" within her agency (J.A. 85).

These allegations are sufficient to raise a suspicion under the first rationale that the employer itself knew, or should have known, of the harassment, and hence the common law result of no respondeat superior should be considered reversed by the statute. However, under this rationale, the plaintiff still has a substantial burden to prove: as alleged, EPA officials other than Barnes' own supervisor must be shown to have incorrectly or falsely advised plaintiff in processing her complaint, and to have treated her adversely in job assignment, for the purpose of frustrating her Title VII charge and punishing her for bringing it, or with that effect. If plaintiff can prove this, she should prevail.

From a more general perspective, respondeat superior should apply, and the common law rule should be ousted, whenever a plaintiff can show that, in addition to the particular sexual advance, and the retaliatory actions by the maker of that advance, other agents of the employer with knowledge of her charges assisted the retaliation or impeded the complaint. That type of showing suffices to shift to the defendant the burden of disproving that the agency had, at the least, a callous disregard of Title VII rights.

2. Employer's ability to take preventive steps in advance. An employer could promulgate a rule that no sexual advances were to be made by any supervisors to any employees. The unique problem with this kind of harassment, however, is that its potential is not confined to working hours. Even if a no-advances rule were adopted, it could only with great difficulty be made to apply to employees' "own time."

Hence, there is no basis under this rationale to oust the common law rule against respondeat superior for acts outside the scope of employment. Nor do the facts of this complaint demonstrate a narrowly definable opportunity for the employer to formulate a specific preventive rule short of prohibiting all off-hours social contacts between employees and supervisors which is of course out of the question.

As the analysis under this rationale unfolds, it is apparent that an employer could somewhat insulate itself from vicarious liability by taking certain preventive measures. At the least, an employer should be free from vicarious liability if it 1) posts the firm's (or government's) policy against sexual harassment by supervisors, and 2) provides a workable mechanism for the prompt reporting of sexual harassment, which mechanism 3) includes the rapid issuance of a warning to the supervisor complained of, or the mere notation of a rejected sexual advance for possible future reference in case an issue is made of voluntariness, and 4) affords the opportunity of the complainant remaining anonymous.

Here, the established policy of the federal government against sex discrimination,7 applies to the Environmental Protection Agency, and the 1972 Equal Employment Opportunity Act8 together with Executive Order No. 11375 (1967)9 provide a mechanism for reporting and adjusting complaints.10 Those broad steps are important, and in the present context (where no precise preventive rule was feasible) they suffice to defeat vicarious liability. Nevertheless, detailed procedures along the lines suggested would demonstrate more sensitivity to the particular problem of sexual advances and subsequent discrimination, and, if conscientiously applied, would come close to assuring an employer of protection against vicarious liability in many cases.

3. Inducing extra caution. Sexual advances may not be intrinsically offensive, and no policy can be derived from the equal employment opportunity laws to discourage them. We are not here concerned with racial epithets or confusing union authorization cards, which serve no one's interest, but with social patterns that to some extent are normal and expectable. It is the abuse of the practice, rather than the practice itself, that arouses alarm.

Accordingly, there is no justification under this rationale to impose vicarious liability upon an employer.

In summary, I concur in the remand of this case, but on a narrower ground than the majority. Barnes has brought her suit against the Environmental Protection Agency and its administrator, not against a single supervisor. Vicarious liability of an employer would not attach at common law under the facts here alleged, so the suit can be maintained only by reason of a statutory exception. Drawing from labor relations law and equal employment opportunity law, we can isolate three general rationales for overturning the common law and imposing respondeat superior or principal-agent liability. Only one of those provides a basis for such a ruling on these facts. That theory is brought into operation by the charge that other management personnel harassed petitioner, that they misled her in filing her complaint, that her supervisors retaliated against her for doing so and that her employer, with knowledge of the facts alleged by her, ratified the discrimination that her supervisor had improperly imposed upon her. Those allegations if true would make a case that the Environmental Protection Agency knew or should have known of the harassment involved.11 The case should be remanded to allow petitioner a chance to prove this claim.


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