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The Florida Bar Journal
December, 1997 Volume LXXI, No. 11
The Perils of (Reporting and) Not Reporting Sexual Harassment

by N. James Turner

Page 28


Three years ago, an article appeared in the December1994 issue of The Florida
Bar Journal entitled “Employer Liability for Acts of Sexual Harassment in the Workplace: Respondeat Superior and Beyond.” One of the conclusions this author expressed in that issue was that in many situations, an employer can be held liable for the acts of its low-level and mid-level supervisors if those acts represent the exercise of authority that third parties reasonably believe him or her to possess as evidenced by the employer’s conduct. Since its publication, and, in particular, during the calendar year of 1997, the 11th Circuit Court of Appeals published several opinions that have a substantial impact on the subject of employer liability for hostile environment sexual harassment, essentially making the opinions and conclusions of the December 1994 column obsolete. What follows is a review of the most important of those opinions which will also serve as an update to the earlier treatment of the subject of employer liability for acts of sexual harassment.
Faragher v. City of Boca Raton
By far, the most significant of the 11th Circuit opinions on the subject of employer liability for sexual harassment is Faragh-er v. City of Boca Raton, 111 F.3d 1530 (11th Cir. 1997). The central facts in Faragher are simple and essentially involve unwelcome sexual advances in the workplace toward two females by two heterosexual males, constituting what one court recently referred to as a “paradigm [sexual] harassment case.”1 Beth Ann Faragh-er worked as a lifeguard for the City of Boca Raton from September of 1985 until June of 1990. During her employment, Bill Terry and David Silverman acted as supervisors over all ocean lifeguards, Terry acting as chief of the marine safety section and Silverman as a marine safety lieutenant and later as captain. Terry had the authority to supervise all aspects of the lifeguards’ assignments, as well as to give oral reprimands, place reports of disciplinary actions in personnel files, and to interview and select new lifeguards subject to approval by higher management. Silverman supervised the lifeguards’ daily duties, including designating work assignments and supervising physical fitness routines. The marine safety section headquarters was located at a remote area of the beach, far from city hall. Terry, as chief of the marine safety section, reported to the recreation superintendent, who reported to the director of parks and recreation, who in turn reported to the city manager. Of crucial importance was the fact that lifeguards had little contact with city officials.

Marine Safety Chief Terry subjected Faragher and another female lifeguard, Nancy Ewan-chew, to uninvited and offensive touching. Lieutenant Silverman made offensive comments and gestures to both Faragher and Ewanchew. Specifically, Faragher testified that over the course of her five years of employment, Terry touched her shoulders, touched her waist on a number of occasions, patted her thigh once in April of 1990, and slapped her on the rear-end. Ewanchew testified about two specific instances where Terry touched her in a sexually offensive manner. However, neither Faragher nor Ewanchew ever complained to the parks and recreation department management about Terry’s or Silverman’s conduct while they were employed by the city. Both women spoke about their conduct with another supervisor, Captain Robert Gordon, who was the marine safety lieutenant and training captain. Moreover, most of the female lifeguards complained to Gordon about Silverman’s language and conduct. However, they did not speak with Gordon as their supervisor; instead, they spoke to him as a friend. Notwithstanding the importance of these confidences, Gordon never reported the complaints to his supervisor, to Terry, or to any other city official.

Ewanchew and Faragher resigned their lifeguard positions in April of 1989 and June of 1990, respectively. Neither woman said anything about sexual harassment upon their resignations. However, one year after her departure, Ewanchew wrote a letter to the city’s director of personnel complaining that she and other female lifeguards had been sexually harassed by Terry and Silver-man while employed by the city. Until receiving Ewanchew’s letter in April 1990, the city did not know about Terry’s and Silverman’s conduct. After that letter, the city investigated Ewan-chew’s allegations and determined that Terry and Silverman had engaged in inappropriate conduct and reprimanded and disciplined both of them.

In 1992, Faragher sued the city for sexual harassment under Title VII of the Civil Rights Act of 1964 and Terry and Silverman for sexual harassment under 42 U.S.C. §1983. In addition, Faragher and Ewanchew2 asserted several pendent state law claims, suing Terry for battery and the city for negligent retention and supervision of Terry. The district court conducted a nonjury trial on all claims and entered judgment for Faragher on her Title VII claim against the city, awarding her $1 in nominal damages. The trial judge held that Terry’s and Silverman’s offensive conduct was sufficiently severe and pervasive so as to alter the conditions of Faragher-’s employment by creating a hostile work environment. Additionally, the city was found to be directly liable for Terry’s and Silver-man’s conduct under agency principles based upon their supervisory authority and overall workplace structure, and indirectly liable for Terry’s and Silver-man’s offensive conduct because it was severe and pervasive and supported “an inference of knowledge, or constructive knowledge, on the part of the city regarding Terry’s and Silverman’s sexual harassment.”3

Faragher and Ewanchew appealed and the city cross-appealed. A three-judge panel of the 11th Circuit reversed the district court’s judgment for Faragher on her Title VII claim against the city but affirmed the judgment in all other respects.4 Thereafter, the panel opinion was vacated and an en banc rehearing was granted.5 In its en banc opinion, the Court of Appeals held that: 1) the city was not vicariously liable for the sexual harassment by Terry and Silver-man; and 2) the city was not directly liable for their harassment.

In arriving at its holding, the Court of Appeals initially addressed two issues: first, whether the city may be liable under Title VII for Terry’s and Silverman’s hostile environment sexual harassment of Faragher, regardless of whether the city had actual or constructive knowledge of that harassment; and, second, whether the city knew or should have known of Terry’s and Silverman’s hostile environment sexual harassment of Faragher. Faragher contended that Terry’s and Silver-man’s positions as top lifeguard commanders made them “prototypical agents of the City.” Moreover, she argued that the harassment by them was so pervasive that the city should have been charged with constructive knowledge of their conduct.

In response to Faragher’s contentions, the city argued that it could not be held liable under agency principles for either man’s- conduct because there was no evidence to support a finding that they were acting within the scope of their authority in harassing Faragher, or that they were aided in accomplishing the harassment by the existence of their agency relationships with their employer. The city further argued that the evidence was insufficient to support the trial court’s finding that the city had constructive notice of Terry’s and Silverman’s conduct.

In beginning its analysis of the first issue, the majority paid proper deference to Meritor Savings Bank v. Vinson, which mandated that federal courts use traditional agency principles when deciding hostile environment sexual harassment cases, but simultaneously “place some limits on the acts of employees for whom employers under Title VII are to be held responsible.”6 In order to simplify its analysis of the two critical issues upon which the court focused, a distinction was drawn between direct liability and indirect liability under agency principles. The opinion stated further that an employer is directly liable for hostile environment sexual harassment if it knew or upon reasonably diligent inquiry should have known, of the harassment and failed to take immediate and appropriate corrective action citing Steele v. Offshore Shipbuilding, Inc.7 The 11th Circuit observed that under the theory of direct liability, the city can be held liable for its own negligence or recklessness, but not for the conduct of its supervisors or employees. Again, a contrast was made between direct liability with indirect or vicarious liability for the wrongful conduct of its agents, and whether the employer knew or should have known of the agent’s wrongful acts. The court pointed out that generally, an employer may be indirectly liable for hostile environ-ment 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 that aids the supervisor’s ability or opportunity to harass his or her subordinate.8

The decision observed, among other things, that prior precedent in the 11th Circuit has concluded that in a pure hostile environment case, a supervisor’s harassing comment is typically outside the scope of his employment.9 Further, the 11th Circuit had previously articulated two agency principles under which an employer may be held indirectly, or vicariously, liable for hostile environment sexual harassment: 1) when a harasser is acting within the scope of his or her employment and perpetrating the harassment;10 and 2) when a harasser is acting outside the scope of his or her employ-ment, but is aided in accomplishing the harassment by the existence of the agency relationship.11 Based on these criteria, the court held that Faragher’s claims against the city failed on both theories.

It was noted that neither Terry nor Silverman was acting within the scope of his employment when the harassment was perpetrated. It was well-established under common law agency rules, the court mentioned, that an agent is not acting within the scope of his or her employment when the agent is “going on a frolic of his own.”12 In order for an employee’s conduct to be within the course and scope of his or her employ-ment, the court deferred to Florida law requiring that the conduct 1) must have been the kind for which the employee was employed to perform; 2) must have occurred within the time and space limits of his or her employment; and 3) must have been activated at least in part by a purpose to serve the employment.13 In applying these principles to the facts, the court stated:

The harassment here consisted of offensive comments, gestures, and touching. However, the nature of Terry’s and Silverman’s acts and comments towards Faragher does not support a finding that they were acting within the scope of their employment in subjecting Fara-gher to offensive language, gestures, and touching. Indeed, there is no evidence that Terry and Silverman harassed Fara-gher in order to perform any service for the City, or that they were either explicitly or implicitly authorized by the City to engage in such harassment. This case provides the archetypical example of employees stepping outside of the scope of their employment and seeking to further personal ends. Consequently, under this theory of vicarious liabi-lity, the City cannot be liable for Terry’s and Silver-man’s harassing conduct.14

Thus, the conclusion reached was that neither Terry nor Silverman was aided in accomplishing the harassment by the existence of their agency relationship with the city. While conceding that a supervisor is always aided in accomplishing hostile environment sexual harassment by the existence of an agency relationship with his or her employer because a supervisor’s responsibilities include close proximity and regular contact with the victim, the court proclaimed that the common law rule does not use “aided” in such a broad sense. The employer is liable only if the harassment is accomplished by an instrumentality of the agency or through conduct associated with the agency status. In demonstrating this principle, the court drew from the example provided in Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987), where the harasser used the authority delegated to him by the company to assist him in the harassment, i.e., he repeatedly reminded the victim that he could fire her if she refused his advances.15 In applying these legal principles to the facts, the court noted that no person threatened to fire or demote Fara-gher for refusing to accommodate Terry’s or Silverman’s harassing overtures. Moreover, the majority stated that the harassment could not reasonably be viewed as conduct associated with Terry’s or Silver-man’s status as agents of the city. There was no evidence, according to the court, that either Terry or Silverman made any employment decisions based upon Faragher’s response to their sexual overtures; neither was acting within the line and scope of his employment in perpetrating the harassment against Faragher; and, neither was aided in accomplishing the harassment by the existence of any agency relationship with the city. Thus, the 11th Circuit held that the district court erred in holding that the city was vicariously liable for the acts of Terry and Silverman in the harassment of Faragher.

The next issue for consideration was whether the city was directly liable for the acts of Terry or Silverman either because it had actual knowledge of the harassment or constructive knowledge as a result of the pervasiveness of the harassment. On this issue, the court preliminarily observ-ed that an employer is directly liable for hostile work environment sexual harassment if the employer knew or should have known of the harassment and failed to take “prompt remedial action.”16 It stated that a plaintiff can prove an employer’s knowledge of harassment by showing that she complained to higher management.17 The court noticed that while several lifeguards complained to Lieutenant Gordon, he did not rank as “higher management” in the city and, therefore, notice to him could not be imputed to the city.

It was also observed that the failure to report the sexual harassment was not fatal to the plaintiff’s case if an employee could demonstrate that it was pervasive enough to charge the employer with constructive knowledge.18 The district court concluded that the conduct was sufficiently severe and pervasive to alter the condition of Fara-gher’s employment and that this “supports an inference of knowledge, or constructive knowledge on the part of the City regarding Terry’s and Silverman’s sexual harassment, making the City [directly] liable for such conduct.” On that issue, the trial judge unequivocally stated: “According to the court, the pervasiveness analysis applicable to finding that the work environment was abusive is the same as the analysis required to show the employer’s knowledge.”19

The 11th Circuit agreed with the district court that the analyses are the same to the extent that a court must evaluate the totality of the circumstances both in determining whether the work environment was abusive and in determining whether that conduct was pervasive enough to put the employer on notice. However, the 11th Circuit disagreed with the trial court’s apparent belief that simply because conduct is pervasive enough to create an abusive work environment, the employer should be charged with knowledge of the conduct. As to this point of law, the 11th Circuit declared that the question of notice to the em-ployer “is distinct from the question of the environ-ment’s abusiveness.”20 The court pointed out the occasional difficulty in distinguishing conduct that becomes pervasive enough to impute its knowledge to the employer. However, the 11th Circuit observed that the trial court expressly found that the city had no knowledge of Terry’s or Silver-man’s conduct, detecting what it considered to be a total absence of evidence as to any factual basis for concluding that the harassment was so pervasive that the city should have been aware of it. Moreover, the court remarked that the opposite was true, noting that the lifeguards were stationed at a remote location and had little contact with city officials.

The en banc ruling was a seven-to-five decision with Judge Rosemary Barkett writing an opinion dissenting in part and concurring in part. Judge Barkett disagreed with the majority’s conclusion that the city was not liable under the circumstances of the case. In particular, she reasoned that the majority failed to give appropriate consideration to the responsibility of an employer for the acts of its agents under traditional agency principles. She also assailed the majority’s opinion on the grounds that it effectively eliminates constructive knowledge as a basis for liability and limits employer liability to actual knowledge “of high City officials.”21

On the issue of its analysis under direct liability, Judge Barkett was critical of the majority’s conclusion that the city had no constructive knowledge of the harassment. Her opinion observed that the trial court found the conduct of Terry and Silverman “sufficiently severe or pervasive”22 to constitute hostile environment sexual harassment. She charged that the majority essentially engaged in a de novo review of this issue, substituting their own opinion for the trier of fact’s assessment of the record. Judge Barkett’s opinion likewise was critical of the majority’s conclusion that simply because conduct is pervasive enough to create a hostile environment, an employer should not be charged with constructive knowledge of the conduct. She pointed out that the majority cited no case which holds that the same level of pervasiveness cannot support the finding of constructive notice of a hostile environment. Moreover, she questioned the logic of such an assertion.

In disagreeing with the majority on the issue of constructive knowledge, the dissenting/concurring opinion states:

Thus, an employer cannot insulate itself from liability by abandoning its employees in a remote location to be supervised by someone who makes their work lives miserable by offensive touching and an atmosphere of sexually offensive comments, suggestions, and innuendo.23

Terry was the chief and supervisor of the lifeguard station at which Faragher worked, Judge Barkett points out—he clearly had the notice necessary to impute knowledge, and, therefore, liability, to the city.

Judge Barkett also opined that the city was indirectly liable for the acts of Terry and Silverman relying on the Restatement of Agency, which states that “an act, although forbidden, or done in a forbidden manner, may be within the scope of employment.”18 Alternatively, the judge indicated her belief that the city was also liable under §219(2)(d) of the restatement, which holds that a principal is liable for the acts of an agent when the agent is aided in accomplishing the tort by the existence of the agency relationship. She based this belief on the revealing fact that both Terry and Silverman were granted virtually unchecked authority over the work environment. In Terry’s capacity as marine safety chief, he had the authority to supervise all aspects of the lifeguards’ work assignments, to conduct counseling and oral reprimands, and to place reports of such disciplinary action in the lifeguards’ personnel files. Terry held the highest management position in the marine safety section and was ultimately responsible for the general beach environment, including the public’s safety and as such, it was incumbent upon him to ensure optimal performance from his lifeguards. Silverman, as a marine safety lieutenant, supervised the lifeguards’ daily duties, including work assignments and staffing of shifts. Also pointed out by her opinion was the fact that although the city had a written sexual harassment policy, it was never disseminated among marine safety section employees, and in fact, supervisors were never told or made aware of the city’s sexual harassment policy.

Judge Barkett’s opinion was critical of the city, because it was clear that it had divested itself of all responsibility for the social climates of the lifeguards’ work environment and that Terry and Silverman were essentially given unfettered responsibility for the control over it. Thus, she concluded that Terry and Silverman were acting with the requisite amount of authority as agents to bind the city for their acts of harassment that were undertaken during the time and at the place of work and were necessarily incidental to the broad range of their tasks as supervisors.

Additionall-y, Judge Tjoflat filed a concurring-in-part-and-dissenting-in-part opinion. He similarly disagreed with the majority that the city had no “actual knowledge” of the sexual harassment and that there was no basis for constructive knowledge of it. Judge Tjoflat indicated that Faragher’s supervisor, Bill Terry, had knowledge of the harassment because he was a perpetrator and that the city should be liable for the sexual harassment experienced by Faragher because it placed Terry in charge of her working environment and gave him the responsibility of maintaining order in the workplace.

Judge Tjoflat was also concerned about the lack of communication of the city’s sexual harassment policy, and, on this subject wrote:

Because the City neither communicated the [sexual harassment] policy to these employees nor identified the person to whom the complaints of sexual harassment were to be made, the responsibility for implementing the policy in Faragher’s workplace necessarily fell to Terry. Because he was aware that Faragher was working in a sexually abusive environment and did nothing to correct the situation, I would hold the City liable for the injury she sustained.24

Judge Tjoflat equated the city’s failure to communicate its sexual harassment policy to effectively concealing from its employees the avenue for redress of their grievances. This, he contended, would encourage employers to have a sexual harassment policy which was effectively “hidd-en” from their employees, in particular the identity of the person to whom the claims are to be made; and this would in time “breed disrespect for the law.”25 Judge Tjoflat’s comment is especially compelling in light of what the Supreme Court stated in Meritor Savings Bank, FSB v. Vinson,26 that “Petitioner’s contention that respondent’s failure [to complain to higher management] should insulate it from liability might be substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward.”


Judge Anderson also filed a concurring-in-part-and-dissenting-in-part opinion agreeing with opinions and conclusions of Judge Barkett as set forth in her dissenting/concurring opinion.
Manifestly, the dissents in Faragher adequately challenged and critiqued the reasoning of the majority in arriving at its holdings. However, it is respectfully submitted that there are additional reasons why the decision is fatally flawed. The majority points out that Terry and Silverman were never given the authority, as agents of the City of Boca Raton, to sexually harass the lifeguards. This, the majority concludes, is one of the linchpins for holding that the city was not indirectly liable for their unlawful acts. However, did not the city clothe Terry and Silverman with the authority to receive complaints from employees about working conditions? Don’t prudent employers insist that their managers report incidents that may result in the company being liable? And, if the city had learned that Terry and Silverman hadnot reported a material event that had occurred at the beach, wouldn’t they have been disciplined? A fortiori, if Terry and Silver-man were authorized to receive complaints from employees about working conditions, wouldn’t that fact provide the city with actual notice of the sexual harassment in view of the fact that they were the perpetrators?27 In this regard, the majority’s decision is illogical because it will encourage nonreporting of incidents of all kinds, including sexual harassment.

Another major problem with the majority’s opinion relates to its treatment of the issue of the lack of communication of the sexual harassment policy. Judges Barkett and Tjoflat ably addressed and dealt with that subject; however, it is respectfully submitted that another problem caused by the deficiencies in the dissemination of the- sexual harassment policy was overlooked by the court. Among many things, a well-communicated sexual harassment policy constitutes a strong statement by the employer about its stand on sexual harassment. Moreover, this “statement” frequently ensures confidentiality and protection from retaliation.28 Faragher and Ewanchew had no assurances from the City of Boca Raton that their complaints of sexual harassment would be taken seriously or even investigated. Because of the court’s frequent statements about the beach being an “outpost,” it is conceivable that neither Faragher nor Ewan-chew knew anyone at city hall.29 Thus, this author postulates that the failure of Faragher and Ewanchew to report the sexual harassment to city hall could and should be excused inasmuch as the city had the opportunity to ensure a valid and effective reporting procedure by adequately disseminating and communicating its sexual harassment policy.

Farley v. American
Cast Iron Pipe Co.
Another critical case decided by the 11th Circuit on the subject of sexual harassment was Farley v. American Cast Iron Pipe Co., 115 F.3d 1548 (11th Cir. 1997). Anita Farley was first employed by the defendant as a dental assistant in 1987 and at the time that she began her employment, Dr. Thomas Gann worked as a dentist in the same clinic. Farley alleged that Gann subjected her to unwelcome sexual advances and remarks from approximately November of 1989 through May of 1994. Some examples of Gann’s conduct were that he communicated his erotic dreams about her; kissed her over her objections; told jokes of a sexual nature in her presence; made sexually explicit remarks about her body; and, deliberately caused her to trip and fall so he could pick her up and spin her around. In response to this conduct, Farley clearly expressed to Gann that she considered his conduct to be unwelcome. Two other female dental assistants testified that Gann had engaged in what they deemed to be offensive sexual behavior. One testified that Gann kissed her on two occasions and the other asserted that Gann attempted to kiss her and press his body against hers. There was also testimony that Gann had read Playboy magazines at work.

Gann was promoted to chief of dentistry on August 1, 1994. Approximately one month later, Farley was scheduled to meet with him and the dentist to whom Farley was assigned, Dr. Faye Chambers, to discuss Farley’s work performance. Prior to that meeting, Farley notified the defendant’s employees’ representative of her allegations about Gann’s behavior toward her. The representative accompanied Farley to the meeting with Gann and Chambers, during which Gann and Chambers criticized Farley regarding the scheduling of her personal doctors’ appointments at certain times of the day and the fact that she was not attentive to returning patients’ telephone calls. Farley felt that Gann was more stringent with her after he became chief of dentistry in retaliation for her refusal to succumb to his sexual advances. Following this meeting, the defendant’s employees’ representative notified the director of human resources regarding Farley’s allegations of sexual harassment, and an investigation was conducted. The results were that “while Dr. Gann may have engaged in inappropriate and unprofessional conduct, the confirmed incidents were not so severe or pervasive as to meet the legal definition of sexual harassment.” Human resources recommended that Gann apologize for his behavior, receive a written reprimand, and be removed from any supervisory responsibilities. The report of the company’s equal employment oppor-tunity officer was accepted by the employer and Gann’s salary and benefits were reduced to a level consistent with his demotion and title. However, Farley did not accept the results of the investigation and she refused to return to her job as a dental assistant in the clinic. She asked to be assigned elsewhere in the facility. Two months later, the employer’s human resource director elicited and received two psychiatric evaluations concerning Farley’s ability to continue working in the dental department. Farley remained on leave with full salary for approximately five months until February of 1995, at which time her employment was terminated. During this time, she had refused to accept any of the available jobs either outside or within the dental department.

Farley filed a Title VII claim against the defendant alleging that she had been subjected to sexual harassment and a hostile work environment as well as retaliation for filing an internal complaint. The trial court granted summary judgment in favor of the defendant/employer finding that: 1) Farley had failed to show that the employer could be held liable for quid pro quo sexual harassment; 2) Farley had failed to demon-strate that Gann’s conduct was so pervasive as to charge the employer with constructive knowledge of the harassment; 3) the employer reacted promptly and effectively to Farley’s complaint; and 4) Farley had failed to show that the employer’s legitimate reason for her termination was a pretext for retaliation.

In reviewing the district court’s order, de novo, the court initially delineated the agency principles that it had recently enunciated in Faragher v. City of Boca Raton. Moving to the next issue, the court found that there was no quid pro quo sexual harassment, noting that Gann was not even Farley’s supervisor during the time of the alleged incidents. On the issue of the existence of a hostile environment for sexual harassment, the court again cited Faragher and noted that the record did not contain sufficient evidence to demonstrate that the employer had actual know-ledge of the sexual harassment. The court emphasized that it was persuaded by the fact that the employer had a valid, effective, and well-disseminated policy prohibiting sexual harassment within the company and that the -existence of such a policy precluded a finding of constructive knowledge concerning Gann’s behavior. Noteworthy is the fact that Farley did not challenge the efficacy or adequacy of the sexual harassment policy and did not dispute the fact that it was communicated to all staff and employees in training classes. Furthermore, the court found equally critical the fact that the employer conducted a thorough investigation into the allegations and took the complaint seriously. On this point the court stated: “We determine that, because [the employer] had an effective anti-sexual harassment policy that was unequivocally communicated to employees, [the employer] was entitled to rely on the procedural framework provided in the policy to remain apprized of the conduct of its own staff.”30

The court went on to state:

In sum, we hold that an employer is insulated from liability under Title VII for a hostile environment sexual harassment claim premised on constructive knowledge of the harassment when the employer has adopted an antidiscrimination policy that is comprehensive, well-known to employees, vigorously enforced, and provides alternative- avenues of redress.31

In at least one major respect, Farley is the antithesis of Faragher from the standpoint of reporting sexual harassment. In Farley, there was a sexual harassment policy that was -well communicat-ed to employees. Thus, the court held that the failure to follow the procedures set forth in this policy precluded a legal claim of sexual harassment. Moreover, the court’s statement that the sexual harassment policy was well-known to employees and vigorously enforced underscores the practical problems in the workplace that may be created as a result from the Faragher holding. Neither Faragher nor Ewan-chew knew to whom she should report her complaints of sexual harass-ment, or whether the city’s sexual harassment policy, if it had one, would be vigorously enforced.

Fleming v. Boeing Co.
Fleming v. Boeing Co., 120 F.3d 242 (11th Cir. 1997), was another decision of the 11th Circuit on the issue of employer liability. In this case, the plaintiff, a full-time secretary, brought an action against an engineer by the name of Bobby Philyaw. The plaintiff claimed that Philyaw had touched her and gazed at her. Fleming complained to her superior and she contended that the defendant did not act quickly enough to eliminate the problem. A second case was brought against Boeing by Sherrye Alexander, a temporary secretary, who claimed that Philyaw touched her, gazed at her, and made inappropriate remarks to her. The trial court granted summary judgment in favor of the defendant/employer on both claims. The 11th Circuit indicated that the only issue on appeal was whether the district court was correct in holding that Fleming’s evidence of hostile work environment was not sufficient to withstand summary judgment. The parties conflicted over whether Philyaw’s conduct was so severe or pervasive to create an objectively abusive hostile work environment. However, the court essentially passed over this issue to hold that Fleming presented no evidence that Boeing was either directly or indirectly liable for Philyaw-’s actions. The court cited and relied on Faragher v. City of Boca Raton in going through the analysis of direct and indirect liability. In conclusion, the court found that the defendant was not liable because it did not know of Philyaw-’s conduct. When Fleming complained to Phil-yaw’s supervisor, she was assured that if anything further happened she would notify the defendant’s EEO officer; however, she never had any further complaints. Thus, as to both employees, Fleming and Alexander, the court held that the employer was not indirectly liable for Philyaw-’s conduct because it was not within the scope of his employment nor aided by the existence of his employment. Moreover, the employer was not directly liable because it took immediate and appropriate corrective action.

Allen v. Tyson Foods
The 11th Circuit was again called upon to review the grant of a summary judgment in favor of the defendants -involving the subject of constructive notice and the failure to report sexual harassment according to a written company policy--. In Allen v. Tyson Foods-, 121 F.3d 642 (11th Cir. 1997), Mr. Wood, Ms. Allen’s supervisor, wrote sexually explicit notes to her, solicited sexual favors from her, and improperly touched her on at least one occasion. At first, Allen allegedly believed that Wood was joking when he wrote her the notes; however, on the fourth note, Allen contended that she asked Wood to stop giving her the harassing correspondence. After receiving a fifth sexually explicit note, Allen wrote to Wood, threatening legal action if he continued the harassment. Despite the fact that the company had a sexual harassment policy, Allen had never complained to anyone at Tyson about the abuse. Surprisingly, Wo-od returned Allen’s letter and reported her complaint to his superintendent. A Tyson management team then initiated an investigation into the matter. Allen contended that she was intimidated and harassed by Wood and other Tyson employees during the investigation. Ultimately, the company could not verify Allen’s complaint so no action was taken against Wood, but Allen was transferred to another plant. Notwithstanding the transfer, she contended that she was still exposed to Wood and that he continued to intimidate her. Consequently, she quit.

Allen produced evidence indicating that her plant was engulfed by an atmosphere of improper sexual activity. There was evidence that employees, including supervisors, engaged in sexual intercourse at the plant, sexually graphic jokes were often told, vulgar and sexually demeaning language was engaged in, employees groped one another’s breasts and genitalia, employees exhibited their genitalia and buttocks, and employees used various chicken parts to mimic sexual organs and activities. Moreover, the evidence suggested that such activities were widely known throughout the plant.

The trial court granted the defendant’s motion for summary judgment indicating that Allen’s Title VII claim against Tyson “bordered on the frivolous.”32 The trial court focused on the fact that Allen had failed to complain to Tyson personnel of the alleged harassment.

The 11th Circuit preliminarily indicated that the issue on appeal was whether the evidence presented a sufficient disagreement as to require submission to a jury or whether it was so one-sided that one party must prevail as a matter of law. The court noted that a plaintiff could prove the employer had knowledge of the harassment by showing that she complained to higher management or by showing that the harassment was so pervasive that the employer could be charged with constructive knowledge of the harassment citing Faragher. On this latter point, the court pronounced that the question of constructive knowledge is an issue of fact. The court again referred to Faragher when it enunciated the following language in addressing the issue of constructive knowledge by the employer: “A court must evaluate the totality of the circumstances both in determining whether the work environment was so abusive and in determining whether the conduct was pervasive enough to put the employer on notice. Faragher 111 F.3d at 1538.”33

The court recognized that Allen had failed to initially complain of the harassment and that when she finally did so, Tyson took immediate action. Accordingly, the court noted that in order for Tyson to be liable under Title VII for a hostile work environment, the alleged harassment must have been so pervasive that the employer was deemed to have constructive knowledge of it. The court recognized that in Faragher, the question of constructive knowledge was separate and distinct from the question of pervasiveness. But, the court further indicated that Faragher also recognized the potential for cases where the same level of pervasiveness supports a finding of both a hostile environment and constructive notice. The following factors were designated by the court -to be considered in determining constructive notice: the remoteness of the location to the harassment as compared to the location of management; whether the harassment occurs intermittently over a long period of time; whether the victims were employed on a part-time or full-time basis; and whether there were only a few, discreet instances of sexual harassment.

The Allen panel noted evidence suggesting that an atmosphere of inappropriate sexual behavior may have permeated the Tyson plant. There were also facts in the record indicating that on numerous occasions Wood engaged in harassing behavior against Allen as well as other Tyson employees. Based upon such a record, the court held that the evidence was sufficient to create a material issue of fact precluding summary judgment. Finally, the appellate court noted that the trial court neglected to determine whether Tyson could be deemed to have had constructive knowledge of the harassment if it did indeed exist.

Thus, where a sexual harassment policy is in place, and the alleged victim has failed to follow the procedures in the policy by complaining to management, Allen v. Tyson Foods must be read together with Farley v. American Cast Iron Pipe Co. More specifically, while Farley holds that a Title VII plaintiff may be precluded from bringing a sexual harassment complaint if she or he fails to inform the employer of the existence of the sexual harassment in view of a comprehensive, well-disseminated sexual harassment policy, an employee may still pursue his or her claim by proving that the employer had constructive knowledge of the harassment.

Reporting Sexual Harassment to “Higher Management”
Eleventh Circuit precedent holds that an employee can show that the employer had knowledge of the harassment by proving that the employee complained to higher management of the problem or by demonstrating that the harassment was so pervasive that an inference of constructive knowledge arises.34

In Reynolds v. CSX Transportation, Inc., 115 F.3d 860 (11th Cir. 1997), the 11th Circuit reviewed a case involving various claims of sexual harassment and retaliation. As in the other cases discussed in this article, the issue of constructive notice to the employer was crucial. In response to one of the plaintiffs’ arguments about constructive notice, the court stated:

[Plaintiff] argues alternatively that even if she did not present sufficient evidence that CSX should have known of a hostile environment prior to her arrival, she did present sufficient evidence to show that CSX actually knew of a hostile environment at that time. She points to Elson’s [a manager] testimony that Elson heard a third-pers-on remark that Widney made an inappropriate comment to Turner about Turner’s pregnancy. We reject this argument since Reynolds presented no evidence to show that Elson was considered higher management within CSX, or that Elson had a duty to report to higher management an offhand third-person remark. See Kilgore v. Thompson & Brock Management, Inc., 93 F.3d 752, 754 (11th Cir. 1996) (holding that hostile environment complaint to a manager not considered “higher management” does not suffice as direct notice to company).35

It is respectfully submitted that the Reynolds court’s reliance on Kilgore is misguided. First, in Reynold-s, the employer had a sexual harassment policy whereas in Kilgore there was none. In Kilgore the plaintiff first complained to the manager of the Pizza Hut. As is pointed out by the Reynolds panel, Kilgore held that although the store manager had managerial responsibilities, she was not part of defendant’s “higher management.” However, what was not stated in the Kilgore opinion is that the defendant had no sexual harassment policy, only a general grievance policy. Moreover, the store manager was one of those persons to whom reporting was specifically designated- by the grievance policy.36

Thus, in Kilgore, the defendant’s management expressly clothed its store manager with the authority to receive complaints, then retracted her agency for purposes of actual knowledge of sexual harassment. This, in the author’s opinion, is the precise kind of situation to which Judge Tjoflat was referring in his dissent in the Faragher decision in which he predicted a potential for the implementation of illusive and convoluted sexual harassment policies that -could “breed a disrespect for the law.”

Conclusion
The recent 11th Circuit decisions discussed in this article provide the following rules for lawyers handling sexual harassment cases: 1) an employer will not be held directly liable for the sexual harassment of its employees unless it fails to take prompt remedial action; 2) an employ-er will not be held indirectly liable for the acts of its low- to mid-level managerial employees unless the employees use the instrumentalities of their offices in order to perpetrate the sexual harassment; 3) an employ-er will not be deemed to have actual knowledge of sexual harassment through a reporting process unle-ss the report is made to higher management; 4) an employ-er will not be held to be indirectly liable for acts of sexual harassment of its employees under the doctrine of respondeat superior unless it can be shown that they were acting to perform some service for their employer, or, were implicitly or explicitly authorized to do such acts; 5) a finding by the trier of fact that the sexual harassment was pervasive enough to create a sexually hostile work environment will not necessarily constitute constructive knowledge of the harassment; 6) the failure to follow a comprehensive antidiscrimination po- licy that is well-known to employees and vigorously enforced will be fatal to a plaintiff in a sexual harassment case, unless he or she can demonstrate that the employer had constructive knowledge of the harassment and failed to take prompt corrective action; and 7) the issue of constructive knowledge is an issue of fact and, typically, should not be resolved on summary judgment.

Obviously, many of these rules are far from settled. In view of the decision’s importance, the seven-to-five split, and the dissenting/concurring opinions, Faragher is a strong candidate for certiorari review by the United States Supreme Court.q



1 Fredette v. BVP Management, Ltd., 112 F.3d 1503 (11th Cir. 1997).
2 Ewanchew had no claim under Title VII.
3 Faragher, 111 F.3d at 1534.
4 Faragher v. City of Boca Raton, 76 F.3d 1155 (11th Cir. 1996).
5 Faragher v. City of Boca Raton, 83 F.3d 1346 (11th Cir. 1996).
6 477 U.S. 57, 72 (1986).
7 867 F.2d 1311, 1316 (11th Cir. 1989); see also Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir. 1982).
8 See Restatement (Second) of Agency §219(1), (2)(c), (2)(d).
9 Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir. 1989).
10 Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1558 (11th Cir. 1987) (citing Restatement (Second) of Agency §219(1)).
11 Id. at 1559-60 (citing Restatement (Second) of Agency §219(2)(d)).
12 Joel v. Morrison, 6 C. & P. 501, 172 Eng.Rep. 1338 (1834); Spencer v. Assurance Co. of America, 39 F.3d 1146, 1149 (11th Cir. 1994).
13 Restatement (Second) of Agency §§235, 236.
14 Faragher, 111 F.3d at 1537.
15 Sparks, 830 F.2d at 1560; see also Steele, 867 F.2d at 1317.
16 Steele, 867 F.2d at 1316; Henson, 682 F.2d at 902.
17 Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir. 1988).
18 Id. at 904; Henson, 682 F.2d at 905.
19 Faragher, 111 F.3d at 1538.
20 Id.
21 Id. at 1539.
22 Id. at 1540.
23 Id. at 1541.
24 Id. at 1546.
25 Id.
26 477 U.S. 57 (1986).
27 Judges Barkett and Tjoflat address this issue generally.
28 The absence of a vigorously enforced sexual harassment policy might even have the effect of tacitly encouraging sexual harassment.
29 The opinion acknowledges that the “[l]ifeguards had little contact with City officials.”
30 Farley, 115 F.3d at 1553.
31 Id. at 1554.
32 Allen, 121 F.3d at 645.
33 Id. at 647.
34 Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir. 1988). See also Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir. 1982).
35 Reynolds, 115 F.3d at 867.
36 The author expresses his appreciation to Ann C. Robertson of Birmingham, Alabama, attorney for the plaintiff, for providing this information.

[Revised: 02-10-2012]