Barbara J. HENSON, Plaintiff-Appellant, v. CITY OF DUNDEE, Defendant-Appellee

meaning inquiries sexual and vulgarities VANCE, Before KRAVITCH and throughout the course of two years CLARK, Judges. Circuit during which Henson worked for the police department. Henson stated that in addi- VANCE, Judge: Circuit tion to periodic harangues, Sellgren these In deciding appeal, this we must repeatedly requested deter- have she proper application court, mine the VII Title relations with him. The district how- ever, principles to claims of sexual permit harassment at did not attorney the workplace. Appellant, Barbara Hen- present Sellgren evidence that had also son, filed a Title VII action City made sexual advances to Dicks. Henson Dundee, alleging Florida sexual harass- testified further that she complained of ment on her police department. Sellgren’s city conduct 1976 to the mana- case, At the close of appellant’s Eden, the district ger, Jane that Eden took no judgment court entered for the Sellgren. action to restrain Dundee and this appeal followed. also resignation Henson claimed that her

Henson was hired as a dispatcher in the January on 1977 was tantamount to a police five-officer Dundee department on constructive discharge based sex in January position Her was funded violation Specifically, of Title VII. she tes- by the government federal under the Com- tified that January Sellgren prehensive Employment Training Act suspended days pretext her for two on the (CETA). There were five other CETA em- policy she had violated an office ployees dispatchers who worked as bringing dispatch food into the room. Ac- appellee Airlines, Zipes has not contended that com- waived. v. Trans World plaint subject Inc., U.S. -, -, of Henson was the of an untime- 102 S.Ct. ly charge Any objections with the E.E.O.C. charge the timeliness of are therefore Henson, permitted she would have Henson to attend

cording policy had not been of Henson’s enforced, Sellgren if had informed her regarded and she previously academy. interest warning by Sellgren that suspension as a she would be fired if she did not accede the district During opening arguments, therefore claimed requests. his sexual She judge intimated serious reservations about resignation involuntary. that her involving a Title VII claim viability of types alleged sexual harassment of the Sellgren Finally, Henson claimed that of Henson’s Henson.2 At the close po- prevented attending the local her from city’s motion to granted district court have refused to academy lice because she 41(b) of pursuant dismiss the action to rule testified relations with him. She the Federal Rules of Civil Procedure.3 if Sellgren it to her that made clear From the judge’s comments on the bench him, agreed relationship she to have a accompanying and from his memorandum he of the help gain approval would order, the we discern the follow- dismissal city manager academy. to attend the Both ing bases for dismissal: during Henson and Dicks testified that period dispatchers two of the male CETA (1) Henson’s claim that she suffered un- were police academy. sent to the This tes- demeaning der a hostile and work environ- was timony corroborated other witnesses standing cogni- alone did not state a employment records of the two Although zable claim under Title VII. dispatchers. Additionally, city male supervisor, Sellgren, subjected quali- testified that Henson was manager and her female coworker to “crude and inquiring of police academy vulgar language, daily fied to attend the and that almost During you opening argument, you up with it then are in the district mix the other engaged attorney, City Dundee, So, following exchange with Henson’s an area that is uncertain. we will have to Milton, attorney it, Mr. and the hear but the doesn’t think too much Court Sprott: Mr. quit of it. If she because of sexual THE COURT: Aren’t there decisions that a State case. That is a that is say that when sexual advances are not dis- proposition. State She can sue someone in crimination under the statute? Aren’t there County Florida, of the State of but not in go way? decisions that the Federal court. I think that is the law on Honor, MR.SPROTT: Your I haven’t found subject. your We will hear question a case on this of sexual advances. you up against. that is what are ahead. Go THE COURT: It seems to me that one is thing thing. one and one is another 41(b) 3. Rule of the Federal Rules of Civil Proce- No, sir, prohibited MR. MILTON: it is for provides pertinent part: dure men, differently them to be treated from Involuntary Dismissal: Effect Thereof. sexual harassment— plaintiff, .... After the in an action tried THE COURT: That is not discrimination jury, completed the court without a presentation has action. evidence, defendant, of his MR. MILTON: It would be based on sex. waiving right without his to offer evidence in THE I COURT: don’t know whether it is or may granted, motion is not the event the move for a not. ground upon dismissal on MR. MILTON: It would ifbe he did not do plaintiff has shown facts and the law it for men. right The, to relief. court as trier of the no you THE COURT: Do have evidence that may facts then determine them and render he did it with the other woman or didn’t do it may judgment against plaintiff woman, or decline with the other made advances to any judgment her? to render until the close of all judgment If MR. will the evidence. the court renders MILTON: There be evidence presented constantly plaintiff, that he did make on the merits the court 52(a). findings provided harassment toward both women. shall make in Rule you prob- THE COURT: Do understand the Unless the court in its order for dismissal lem? There are cases—I don’t know whether specifies, a under this otherwise dismissal they Circuit, are in the but there are cases in provided dismissal not subdivision and the Federal court. In other words a discrimi- rule, than a dismissal for for in this other you thing, nation case is one It is based on do understand? venue, jurisdiction, improper lack for failure to being a female and treated join party under Rule differently from the males. That is a clear operates adjudication upon the merits. as an it, proposition, question no about but when employees by holding women as to their the trial court erred that a these two Title sexual habits the trial proclivities,” plaintiff VII allege in addition that judge concluded that there was no violation tangible job she suffered some detriment as Sellgren’s of Title VII unless conduct in- working a result of in such an environment. tangible job flicted Henson some det- agree We that under certain circumstances riment. the creation of an offensive or hostile work environment due to sexual harassment can (2) Henson’s claim that she was com- irrespective violate Title VII of whether the pelled intolerable, to resign because of an complainant tangible job suffers detriment. sexually demeaning work environment stat- We therefore reverse the district court’s ed a claim upon grant- which relief could be order as to this claim and remand for a new discharge ed constructive under Title trial on Henson’s work environment However, VII. claim. the district court did not testimony credit Henson’s that she resigned VII prohibits employment Title discrimi police from the Dundee force because of an nation on the gender, basis of and seeks to intolerable work Specifically, environment. arbitrary remove barriers to sexual equality the court resigned found that Henson be- workplace respect to “compen police cause a Dundee officer with whom sation, terms, conditions, privileges affair, having Owens, she was Robert employment.” 2000e-2(a)(1); U.S.C. § had been forced to resign January 1977. Griggs v. Duke Power (3) Henson’s claim that she prevent- ed attending police from academy be- The former fifth circuit has held that cause of her refusal to have sexual relations “terms, conditions, privileges or of employ Sellgren with stated a claim under Title ment” include the psychological state of time, VII. At the same her testimony re- being well at the workplace. In the area of garding Sellgren’s demands for sex as a discrimination, race Judge Goldberg stated: condition to attendance at the academy was “terms, conditions, phrase or privileg- me, “not believed Trial Judge.” employment” es of in is an [Title VII] found, however, specifically The court that expansive concept which sweeps within none of the male dispatchers CETA had protective its ambit the practice of creat- been sent to the academy. The court also ing working heavily environment Sellgren found that had never any made charged ethnic or racial discrimina- coworker, sexual advances to Henson’s Car- tion. olyn Dicks. EEOC, 234, Rogers (5th v. 454 F.2d 238 Cir. On appeal, Henson argues that her work denied, 957, 1971), cert. 92 U.S. S.Ct. allegations environment stated a claim un- 2058, (1972). Therefore, der Title VII for sexual harassment. She have courts held that an violates also argues that the district court erred in simply Title VII by creating condoning or its holdings on her discharge constructive an workplace environment at the which sig police and academy claims. nificantly adversely affects an employ ee because of his ethnicity, regard race or I. tangible job less of other detriment Sexual harassment and work environment See, protected employee. eg., Calcote Henson contends that a plaintiff Foundation, Inc., states a v. Texas Educational claim under Title VII by alleging that sexu- F.Supp. (W.D.Tex.1976) (racial al perpetrated harassment condoned employee harassment of white created dis an employer has conditions), aff’d, created a hostile or offen- criminatory working sive work argues (5th environment. 1978).4 She that F.2d 95 Accord, Leidinger, by supervisors tory Friend v. 588 F.2d 68- references to blacks 1978) (Butzner, J., concurring discriminatory working coworkers created con- Inst, part (numerous dissenting part) ditions); deroga- Firefighters Equality for Racial v. VII a recent a violation of Title stitute a hos- which creates harassment Sexual Ap- the United Court decision of States

tile environment members or offensive circuit. District of Columbia arbitrary every peals bit the barrier of one sex 943-46 v. workplace at equality to sexual equality. racial the court found (D.C.Cir.1981), is to racial harassment dis- illegal man or woman sex Surely, requirement equating that a of law principle in return for run a of sexual abuse work environ- gauntlet with a hostile crimination work and being allowed to privilege “follows by sexual harassment ment caused demeaning and can be as living finding make a Ti- cases ineluctably from numerous epi- racial as the harshest of disconcerting creat- where an tle VII violations in- pattern A of sexual harassment thets.5 [racially] dis- substantially or condoned a ed her sex because of upon employee flicted environment, regardless work criminatory dispa- inflicts pattern is a of behavior employees lost complaining of whether one sex a member of rate treatment Id. at 943-44 job benefits.” any tangible conditions, terms, privi- respect 238) EEOC, (citing Rogers require- There is no leges employment. omitted). also Walter (emphasis subjected to such that an Radio, F.Supp. 1315-16 KFGO disparate treatment addition (D.N.D.1981); Morgan v. Hertz job detriment. tangible she has suffered 123, 27 F.Supp. Empl.Prac.Cas. Fair (W.D.Tenn.1981); Brown (BNA) that a We are bolstered our conclusion Guthrie, by City created atmosphere hostile or offensive alone, (W.D.Okla.1980).6 can, con- standing sexual harassment Hotel, Louis, Plaza Rogers Loews L’Enfant of St. 514 -15 6. Cf. denied, Cir.), Empl.Prac.Dec. (CCH) cert. ¶ (1977) (employee eating segre 32,553 24,470 (D.D.C.1982) (sexual clubs L.Ed.2d gated by discriminatory gives race created work en tort law rise to common employees); right privacy, vironment for black Lucero v. claims for invasion of as Center, Hosp. battery, Beth & Israel Geriatric sault and and intentional infliction (D.Colo.1979) (pattern Brzeczek, distress); of ra emotional Woerner discriminatory working F.Supp. 517, envi cial slurs created (N.D.Ill.1981) (cause employees); United States v. ronment for black action for for offensive work environment Buffalo, 612, (W.D. F.Supp. by 631-35 457 caused be stated harassment can 1978) (same conclusion), part, 1983); Guyette N.Y. modified in 42 under U.S.C. v. Stauffer § Grey (2d 1980). Gray Co., 521, (D.N.J. v. Cf. Chem. 525-26 Lines, East, 169, (D.C.Cir. hound 1981) employee (non-supervisory be could not 1976) (employee standing challenge has em individually held liable for sexual harassment ployer’s hiring practices that a create discrimi Co., VII); Kyriazi under Title v. Western Elec. environment). natory work 894, 1978) (D.N.J. (plaintiff pre pendent Jersey New state claim of vailed on due to sexu tortious interference contract problem 5. The of sexual harassment in the causing environ al harassment ment); hostile work workplace apparently widespread. It was Empl.Prac. Eng’g Smith v. Rust recently hearings the focus of before the Senate 8698, (CCH) (N.D.Ala.1978) (no Dec. at 4784 ¶ Committee on Labor and Human Resources. action for hostile work environment cause of hearings, acting At those chairman of the sexual harassment committed co caused Equal Employment Opportunity Commission allegation that worker where there was no rising charges cited the number of filed with harassment); management knew of the Cald agency complained that of sexual harass- Hodgeman, Empl.Prac.Cas. 25 Fair well ment. See Sex Discrimination in the Work- 1647, (D.Mass.1981) (offensive (BNA) 1649-50 Comm, place, 1981, Hearings Before the Senate re environment caused sexual harassment Resources, Cong., on Labor and Human 97th entitling discharge em sulted in constructive 336, (1981) (statement Clay 1st Sess. of J. benefits); ployee unemployment Continental Smith, Jr., acting E.E.O.C.); chairman of 241, State, 297 248-49 N.W.2d Can Co. Background (April L.R.R. News & Inf. 333-35 1980) (cause (Minn. 27, for hostile work of action 1981). Systems See also U.S. Merit Protec- Board, harassment under environment due to sexual tion Workplace: Sexual Harassment in the Federal 363.03(1)(2)(c) (1978)). But Hill (1981); Minn.Stat. see Is it a Problem? 45 Fed. Empl.Prac. 25,024 11, Wyandotte Corp., Reg. 1980) (April (commentary v. BASF Fair ac- Neeley (E.D.Mich.1981); (BNA) companying guidelines 71-72 E.E.O.C. interim sex- Cas. harassment). Empl. Fidelity ual v. American Assurance ” Additionally, recently the E.E.O.C. has duct of a sexual nature . . . . 29 C.F.R. regulations provide 1604.11(a) issued that a useful and See also Dec. E.E.O.C. 81-18, informative set No. 27 Fair guidelines on sexual (April 1981). pertinent part harassment.7 order to guide constitute this provide lines conduct must be that sexual ad “[u]nwelcome unwelcome in the vances, favors, employee sense that requests for sexual and oth it, did not solicit or incite and in the sense physical er verbal or conduct of a sexual the employee regarded the conduct as nature constitute sexual harassment when Kepro undesirable or offensive. Gan v. Cir . . . such purpose conduct has the or effect Inc., Systems, cuit 27 Empl.Prac.Dec. (CCH) of unreasonably interfering with an individ 32,379, 23,648 ¶ (E.D.Mo.1982); Vinson v. performance ual’s work creating an in Taylor, Empl.Prac.Cas. (BNA) 37, hostile, timidating, or offensive en working (D.D.C.1980); 1604.11(a) 29 C.F.R. § 1604.11(a) (1981). vironment.” 29 C.F.R. § (1981) (only unwelcome sexual advances course, Of neither the courts nor the generate liability); Title VII Development, E.E.O.C. have in suggested every New EEOC Guidelines on Discrimination gives stance of sexual harassment rise to a Employer Because of Liability Sex: Title VII claim for a VII, Sexual Harassment Under Title Rather, hostile work environment. (1981) B.U.L.Rev. (“[wjhether plaintiff must allege number of advances are unwelcome . . . becomes an elements order to establish her claim. evidentiary question well within the courts’ These elements include the following: resolve”). ability to (1) employee belongs protected to a (3) The complained of was group. As in other cases of sexual discrimi- based sex. The essence a disparate nation, requires simple stipulation treatment claim under Title VII is that an man employee is a or a woman. applicant is intentionally sin- (2) subject The employee was to unwel- gled out for adverse treatment on the basis come sexual harassment. The reg- E.E.O.C. prohibited of a criterion. Furnco Construc- ulations helpfully type define the of con- Waters, Corp. 567, 577, tion 438 U.S. duct may constitute sexual harass- (1978); 57 L.Ed.2d 957 advances, ment: “sexual requests for sexu- United States International Brotherhood favors, al physical Teamsters, n.15, and other verbal or con- of 431 U.S. (CCH) ¶ (W.D.Okla. guidelines Prac.Dec. at 6009 on sexual harassment are well principles previously founded Title VII enun courts, EEOC, Rogers ciated Gilbert, In General Elec. Co. v. denied, 1971), cert. (1976), 97 S.Ct. the Su- (1972), U.S. 92 S.Ct. 32 L.Ed.2d 343 preme suggested degree Court to which agency and of the itself. A number of other interpreta- courts should defer to the E.E.O.C.’s guidelines courts have found the to be valuable. tion of Title VII: See, Bundy Jackson, 934, e.g., v. 947 rulings, interpreta- “We consider (D.C.Cir. Radio, 1981); Walter v. KFGO 518 opinions tions and of Administrator un- 1309, (D.N.D.1981); F.Supp. 1315 v. Caldwell Act, controlling upon der this while not Hodgeman, authority, courts reason of their do consti- 1647, (D.Mass.1981); 1649 Continental Can Co. body experience judg- tute a of and informed State, 241, (Minn.1980); v. 297 N.W.2d 248 litigants may prop- ment to which courts and Note, VII, also Sexual Harassment and Title 76 erly guidance. weight resort for The of such 1007, U.Mich.L.Rev. 1019 judgment n.91 See particular depend in a case will generally Development, upon thoroughness New EEOC Guidelines evident in its consid- eration, validity reasoning, Employer of its Discrimination Because of Sex: its con- sistency pronounce- with Liability earlier and later Harassment Under for Sexual Title ments, give VII, and all those factors which (1981) (discussing it 61 B.U.L.Rev. 535 devel power persuade, lacking power to if to con- opment guidelines light princi of of Title VII trol.” ples). 141-42, (quoting Id. at 97 S.Ct. at 410-11 Skid Co., 134, 140, more v. Swift & 65 S.Ct. 161, 164, (1944)). L.Ed. The E.E.O.C. L’Enfant Plaza Rogers v. Loews n.15, (1977); VII. Cf. 1843, 52 L.Ed.2d 396

S.Ct. Education, County Hotel, Empl.Prac.Dec. Lee v. Conecuh Board of F.Supp. 24,470-73 (D.D.C.1982) 961-62 & n.3 (CCH) 32,553 ¶ a hostile work envi proving a claim for basis may form (sexual harassment there ronment due to sexual in torts of law for common action fore, plaintiff must show battery, assault privacy, of vasion sex, the fact of her she would not have been emotional intentional infliction Bundy v. object harassment. See Electric v. Western distress); Kyriazi Jackson, (citing Phillips 641 F.2d at 942-43 (D.N.J.1978) Co., F.Supp. v. Martin Marietta U.S. Jersey New law for (cause of action under (1971); 29 C.F.R. S.Ct. contract); interference tortious 1604.4(a) (1979)); Tomkins v. Public Ser § Division, 285 Employment McPherson v. Or. Co., vice Electric and Gas 1381, 1390 (1979) (employ 591 P.2d Note, (3d 1047 n.4 Sexual unemploy state may ee be able to collect VII, Title Harassment U.Mich.L. resign ment benefits if she is forced (1978) (citing Rev. 1019-20 & n.94 harassment). because of intolerable Transportation McDonald v. Fe Trail Santa (4) complained n.10, “term, condition, privilege’’ affected a or n.10, (1976)). L.Ed.2d 493 The former fifth has employment. circuit typical super In the case in which a male psychological held that the state of well visor makes to a sexual overtures female term, condition, being privilege is a worker, supervisor it is obvious that the did employment within the of Title meaning employees treat male in a similar fash EEOC, Rogers VII. 454 F.2d at 238. ion. It will simple therefore be a matter clear, however, plaintiff Rogers that but for her The court made it sex, subjected she would not have been the “mere utterance of an ethnic or sexual harassment. See epithet engenders racial offensive However, may F.2d at 942 n.7. there feelings employee” in an does not affect the supervisor be cases in which a makes sexual terms, conditions, privileges employ overtures to workers of both sexes or where sufficiently significant degree ment to a equally of is offen complained conduct violate Title VII. lief.8 For sexual harass sive to male and female workers. VII, to state a claim under Title it Costle, Barnes v. 990 n.55 sufficiently pervasive so as to alter be (D.C.Cir.1977); Paper Bradford Sloan employment the conditions of and create an (N.D.Ala.1974); working abusive environment. Whether Note, VII, Sexual Harassment and Title suffi workplace sexual harassment at the is n.99, n.178; supra, at 1020-21 & 1033 & ciently persistent severe and to affect seri Comment, Sexual Harassment and Title ously psychological being well of em VII, 148, 151-52 (1976). 51 N.Y.U.L.Rev. ployees question be determined cases, such the sexual harassment would regard totality to the of the circumstances. not be based sex men and because 1604.11(b)(1981); 29 C.F.R. see Calcote women are accorded like Al treatment. Foundation, Inc., 458 Texas Educational though plaintiff might remedy have a 237; Borden, Inc., Compston situation, under state law in such a 157, plaintiff (S.D.Ohio Title 424 remedy F.Supp. would have no under aff’d, City (4th 1978); Va.1977), 8. See also Cariddi v. Kansas Chiefs Foot 588 F.2d 61 Cir. Club, Inc., 87, Corp., (8th 1977); ball Dickerson v. United States Steel F.2d 568 88 Cir. 439 question 55, Corp., (E.D.Pa.1977), Smith v. Amoco Chems. Empl. F.Supp. certified 20 Fair 75 answered, Note, (BNA) 724, (3d 1978); (S.D.Tex.1979); Prac.Cas. 582 F.2d 827 Cir. Comment, Dolge supra 7, Empl. Pantchenko v. at 1022-24. Cf. C.B. 18 Fair note Sexu VII, 686, (D.Conn.1977), aff’d al Harassment and Title Prac.Cas. 51 N.Y.U.L.Rev. part, 1978); 148, (2d (1976) (single in relevant F.2d 1052 164 n.76 incident of suffi Cir. Leidinger, (E.D. environment). F.Supp. severity may Friend v. create hostile cient Where, Respondeat superior. (5) remand to the district court for a new tri- here, plaintiff employ seeks to hold the al.11 environment responsible

er the hostile We note that Henson does not seek plaintiff’s supervisor or co created position reinstatement to her in the Dundee worker, she must show that It police department. unlikely is therefore knew have the harass or should known of that Henson will be able to an in obtain question prompt ment in and failed to take junction practices police to restrain at the Jackson, v. Bundy remedial action. See which have department injured her in the n.8; Taylor, Vinson v. F.2d at 943 & 23 Fair her. Miller past longer which no affect but Empl.Prac.Cas. (BNA) at 41-42. The em Examiners, of Texas State Board Barber ployee can demonstrate the employer denied, cert. (5th Cir.), 615 F.2d knew of the harassment by showing 66 L.Ed.2d 117 complained she higher management Borden, (1980); Compston v. Jackson, harassment, Bundy v. 162; Jackson, 641 F.2d at 946 943; Guthrie, City Brown v. Additionally, n.12. Henson cannot recover (BNA) at show damages suffering for mental or emotional ing pervasiveness of the distress under Title VII. Garner v. Giar gives rise to the inference of knowl russo, (5th 1978); Cir. constructive knowledge, Taylor edge Hospital Shah Mount Zion & Medical Jones, 1981).10 Center, Henson has made a Bundy v. In this 641 F.2d at 946 n.12. prima showing facie however, all elements neces may, She recover nominal dam sary establish of Title VII. ages prevails violation if she in the new trial and Dismissal of her claim was erro thereby therefore become eligible for an award of neous. Joshi v. Florida State Uni- She is entitled to her claim on attorneys fees. 1824-25, purposes (1973). 9. We assume for of this discussion 36 L.Ed.2d 668 The role of Sellgren supervisor prima was Henson’s rather disparate facie case treatment employer. Sellgren than her ployer, If em- litigation was her production is to shift the burden of City then the of Dundee would be liable after the has eliminated operation respon- for his actions without the nondiscriminatory the most common reasons superior. deat See Heelan v. Johns-Manvilie employ- for the adverse treatment to which the (D.Colo.1978). subjected. Dep’t ee has been Texas of Commu- remand, parties On should offer evidence Burdine, nity 248, 253-54, Affairs v. 450 U.S. point. generally on ski, Ginsburg & Kroe- 1089, 1094-95, (1981). 101 S.Ct. Employee’s Super- Sexual Advances procedure “progressively sharp- This serves to visor: A Sex Discrimination Violation of Title inquiry question en the into the elusive factual VII?, Employee Rel.L.J. discrimination,” n.8, of intentional id. at in a prohibited legitimate case where criteria and 10. We note that Henson testified at trial that employ- related criteria often blend in the complained Sellgren’s alleged she harass- ment decision. manager ment to the town of the of Dun- According testimony, dee. contrast, the case of sexual harassment manager only Sellgren, failed to restrain that creates an offensive environment does not actually suggested that a sexual liaison present question a factual of intentional dis- Sellgren between Henson and would be mutual- Except crimination which is at all elusive. ly beneficial. exceedingly atypical case of a bisexual su- respondeat superior Our treatment of the is- pervisor, it be clear that should sexual harass- sue in the case of sexual harassment that cre- is discrimination based We sex. ates an offensive work environment differs suggest specific therefore see no reason to from our treatment of the issue when sexual prima facie case for the hostile environment tangible job results in detriment. cases, trying claim. these the district courts pp. See infra 908-912. employ principles pleading should normal proof principles may, allocation. These Generally disparate in cases of treatment cases, some vary dictate that the allocation scheme employee may prima establish a facie case superior the individual case because of evidentiary showing means of a lesser than knowledge part party on the of one or other necessary prevail that which would be similar factors. Douglas Corp. the merits. See McDonnell Green, 792, 802-04, 93 S.Ct. 906 (5th judge operated 981, concep under an erroneous 646 F.2d 991 n.33 Cir.

versity, Civiletti, 1981); Empl.Prac.Dec. 28 regarding Dean v. tion of the law sexual harass ¶ 32,438, 23,918 (8th 1982).12 See, (CCH) Cir. e.g., ment and work environment. 419, Ben's, Inc., 628 F.2d Johnson Uncle

II. 902, vacated, (5th 1980), Cir. U.S. 1967, 290, Henson two other claims of sexual aff’d on asserts S.Ct. L.Ed.2d harassment, remand, 1981); constructively (5th that she was dis- Par 657 F.2d 750 Cir. charged employment from because of son v. Kaiser Aluminum & Chemical opportunity sex and that she was denied the (5th 1978), cert. Cir. to attend the police academy denied, because she U.S. S.Ct. Sellgren’s importunities. refused (1979). disagree. L.Ed.2d 1073 We The claim, The district court dismissed each apply former fifth circuit has refused to largely por- because it disbelieved crucial erroneous when the clearly only standard tions testimony regarding of Henson’s his- controlling district is mistaken as to a torical facts in the case. chal- Henson now principle of law. In Johnson v. Uncle and, lenges the district court’s conclusions Ben’s, Inc., example, 628 F.2d at subsidiary indirectly, the court’s factual findings by the factual the district court findings. upon were a misunderstand premised legal ing probative of the value of statistics in

A. of Review. Standard employment discrimination cases. Since assigned unduly the district court little Normally, appeals the court of in a making weight disparities to statistical civil rights respect finding case will a findings, findings its fact those were them historical premised upon credibility fact selves unreliable and were thus “entitled to choice made by the district court unless that no deference.” Id. at 422.13 finding clearly E.g., erroneous. Danner Commission, v. United States Civil Service Ben’s, In this unlike Uncle the dis- (5th 1981); F.2d Cir. Barnes legal trict court’s error did not involve a District, County Jones School 575 F.2d principle of law controlling that was with (5th 1978). finding Cir. “A is clear respect discharge to either the constructive ly when, although erroneous there is evi police academy or the claims. district it, support dence to the reviewing court on only legal theory court erred in its the entire evidence is with left the definite coupled sexual harassment must be and firm conviction that a mistake has been tangible job detriment give order to rise committed.” United States v. United liability. to Title VII This error warrants Co., Gypsum 364, 395, States reversal Henson’s first claim for a hostile (1948); 92 L.Ed. 746 North work environment as a matter of law. River Energy Corp. v. United Mine Workers However, the error did not affect the dis- America, Cir. remaining trict court’s treatment of the 1981); Causey v. Ford Motor 516 F.2d claims which specifically complain of sexual coupled tangible job detri- urges Indeed,

Henson that the normal deference applied ment. the district court to the district findings court’s is not war- legal correct principles passing ranted in this case because the district remaining Henson’s claims.14 In his Memo- Accord, Crenson, concluding T & S Serv. Assocs. the trial court used the (1st 728 n.8 evaluating Croker v. correct standard in claims Boeing 31,867, Empl.Prac.Dec. (CCH) quid pro quo implicit- ¶ we 20,867 Borden, (E.D.Pa.1979); Compston ly reject suggestion the District of Colum- (S.D.Ohio 1976); Stebbins bia circuit that would of the alter the allocation Co., Empl.Prac.Dec. v. Nationwide Mut. Ins. proof burden of as this cases such one. (CCH) (E.D.Va.1971). 1) ¶ 7576,at 5303 (D.C.Cir. Miller, Wright 13. See C. & A. Federal Practice & Procedure § 2585 Facts, and at

randum of Law the district Prac.Cas. 1633-34. this Corp., v. Johns-Manville testimony the disbelieved Henson’s judge cited Heelan judge resigned from Dundee that she the Police (D.Colo.1978), a decision Department because of sexual prima which sets out the facie case resigned because finding instead she detri- resulting sexual harassment whom having the man with she had been an ment, controlling authority.15 as resign depart affair forced to from the was determine whether the proceed We to Corp., Privette Carbide ment. Cf. Union clear mak- district court committed error in (court (W.D.N.C.1975) ing findings of historical fact that warrant- plaintiff’s resigna finds that the cause of ed either claim remaining the dismissal of harassment). alleged tion unrelated to was tangible coupled of sexual harassment point Although evidence job detriment. presents questions credibility close and inferences, conflicting say we cannot Discharge B. Constructive finding of the was clearly district Savings Southwestern Young erroneous. Association, & Loan (5th 509 F.2d The evidence before the district court 1975), Cir. fifth deter the former circuit reasonably support entirely could two dif mined “an employee that when involuntari immediately ferent versions of the events ly resigns escape in order to and intolerable preceeding resignation from the illegal requirements” employment to police department. points Henson to testi color, race, he or subjected she is because of mony showing that she her coworker sex, religion, origin, employ or national subjects were of constant harass er has a discharge committed constructive ment; the harassment culminated on Borque See also violation of VII. Title 18, 1977 January Sellgren suspended when Powell Manufacturing Electrical days brought after two she food Texas Calcote v. (5th F.2d Cir. dispatch into the room in violation of a Foundation, Inc., Educational enforced; F.2d at policy that had never before been 97; Guthrie, Brown v. Empl. upset by that she became so these events 1981), ployer prima the court held that a defendant who had could rebut facie case through convincing

created an offensive work environment “clear and evidence.” sexual harassment must bear an bur onerous shifting procedure We think that this burden persuasion prima den of of the rebut facie case remedy phase peculiarly suited to the of a employee who claims addition that she We Title VII action like Baxter. apply would not deprived tangible job was due to benefits procedure phase in Baxter the first authority As harassment. for this novel Bundy sug disparate of a treatment case scheme, allocation the court cited the decision Indeed, gests. may application such an run Sugar of the fifth circuit in Baxter v. Savannah Supreme afoul of the decision of the Court in (5th Cir.), Ref. denied, cert. Burdine, Dep’t Community Texas Affairs v. S.Ct. L.Ed.2d L.Ed.2d 207 think distin We that Baxter is (1981), shortly which was handed after down guishable. of the the decision District of Columbia circuit systemwide Baxter was a class action for Bundy. generally Johnson v. Uncle respect discrimination pay blacks with Inc., Ben’s, 752-54 & n.3 promotion. The class action was a 1981) (discussing impact of on various Burdine proceeding: phase, bifurcated in the first types rights claims); v. Pick civil Castaneda court whether had determined ard, 1981) (Bur 994 n.2 class, respect violated Title VII with to the id. law under dine alters Title VII does not 443; phase, and in the second the court affect under Title VI in which the em cases belonged determined whether an individual ployer must under certain circumstances rebut the class and thus in the entitled to share prima plaintiffs with clear and facie case damages, prevail class 444. In id. at order to evidence). convincing stage, obliged the first class was its case under normal Title VII allocation prima proper a discussion of the facie however, For phase, scheme. At the second an quid pro quo case for claim, sexual harassment membership individual in who claimed presented prima infra note 22. the class facie case damages was entitled to relief the em- unless 406, 409 ring Continental Oil employment equal consulted that she 819, program; 1980), denied, in the CETA

opportunity (5th officer Cir. cert. urged who 100, a physician (1981); that consulted Welch she L.Ed.2d 90 102 S.Ct. leave; re that she take sick and 531, her to Texas, F.2d University v. of 28, 1977 taking sick after signed January on is, 1981). of (5th Cir. The district to other City points of leave. The Dundee course, primary the arbiter of Henson’s Hen in 1976 indicating that record evidence credibility on issue of her motive for the Owens, a affair Robert began son an 52(a); Barnes resigning. Fed.R.Civ.P. Depart Police policeman with the Dundee District, 575 at County School F.2d Jones ment; pres official that Owens was under 494; Co., Dolge v. B. see Pantchenko C. mar he was to this affair because sure due 1052, 1978). Here, (2d the F.2d Cir. time; was forced to that Owens ried at Henson this choice not to believe on judge’s January on because of affair resign only he respected must be not because issue work with the subsequently found and demeanor, but was able to observe Henson’s Department; that Henson Police Davenport by his other supported also because choice is if quit of her intention to told Owens that suggests evidence which Henson record that resign;16 Dundee forced him to City of voluntarily quit resigna of Owens’ because 28, 1977 resigned January Henson on en “sincerely and that Henson had tion manager and tendered a letter to the town the police joyed” spent the time she had “sincerely en stating that she Sellgren of con The dismissal department.17 force, police joyed” working on the Dundee be affirmed. discharge structive count must job but that due to “work conditions elsewhere; work security,” she would seek police acad- Permission attend C. to later, began work days she and that several emy Department. Davenport with the Police require employer may An not sex does leave us This record employee a an as ual consideration from the dis- firm conviction” that “definite and See, e.g., for quid pro quo job benefits.18 finding that judge was mistaken in trict America, v. Bank Miller of police left her with the force Henson 1979); Public Harp- (9th Service resignation. because of Owens’ Cir. Tomkins 16. impact deposed to do so because of the emotional was under oath ed not Robert Owens During prior Young of Dundee to trial. v. Southwestern of the harassment. Cf. deposition, Ass'n, (5th he testified that Henson told him F.2d Sav. & Loan Cir. quit intended to if he was fired. At 1975) (“Mrs. enjoyed she Young her work and trial, resigned had Owens testified that Henson only her services. The Southwestern valued by Sellgren. sexual On because of cross-examination, harassment possible resignation Septem- reason her attorney for defendant to resolution not attend ber was her him whether bad told asked Owens Henson repugnant religious services which were resign if he was fired. Owens her intention ”). .... conscience responded made such a that Henson had never attorney deposi read the statement. then In her book on Professor sexual Owens, testimony ac which Owens tion distinction between MacKinnon makes a useful knowledged. The could consider district court environ- harassment creates an offensive testimony as evidence under substantive (“condition work”) and harassment 801(d)(2) (1)(A) Hen because Fed.R.Evid. & supervisor which a demands considera- party- a son’s statement was an admission exchange (“quid pro job benefits tion in testimony opponent deposition was and the a MacKinnon, quo"). Sexual Harassment C. prior inconsistent under oath statement (1979); Kay Working & Women 32-47 witness. Review, Brodsky, Book 58 Texas L.Rev. course, testimony far Of Owens’ damaging to issue. Hen- most Henson on this course, level, practical are there On resignation son’s statement in the letter many inter cases that be characterized could enjoyed working police department she at the quid pro changeably of work condition necessarily imply condi- did not that she found See, quo e.g., Tomkins v. Public Serv. cases. Indeed, standing tions there tolerable. alone (3d 1046 & n.1 F.2d Elec. & Gas imply she desired to the statement could Cir. working department, but decid- continue 1044; n.7; F.2d at F.2d at 144 & Gas Baxter v. Sugar Electric Savannah 983; Costle, Garber v. Refining Corp., (5th Barnes F.2d Products, Inc., 552 Business F.2d Cir.), denied, Saxon cert. 95 S.Ct. curiam); 1977) (per Cir. C.F.R. 515, (1974); Rowe v. General 1604.11(a) (1981). In order establish a Motors of Title VII on grounds violation Leidinger, Friend kind, of this J., (4th. 1978) (Butzner, concurring elements, many a number of of which part dissenting part); Flowers proof required are similar to estab- Crouch-Walker 552 F.2d 1282 lish existence of a hostile or offensive (7th 1977); Cir. Anderson v. Methodist work environment: Inc., Evangelical Hospital, 464 F.2d 725 (6th 1972); Co., (1) Cir. Tidwell v. American employee protected The to a Oil belongs (D.Utah F.Supp. group. 1971); 332 436 cf. Associates, Northside Realty Inc. v. United (2) subject The employee was to unwel- States, 1979) (5th 1353 Cir. come sexual harassment. (corporation liable its by violations (3) complained The harassment of was agents of Housing Fair Act of based sex. Costle, Barnes v. 561 F.2d at 993 (employer (4) employee’s The reaction to harass- strictly liable Title VII under for discrimi complained ment of tangible affected as- natory practices supervisory of personnel pects the employee’s compensation, may be from if responsibility relieved terms, conditions, privileges or of employ- against conduct is employer’s policy and The rejection ment. acceptance or of the prompt remedial action taken upon notice harassment an employee must be an conduct). of discriminatory The reason for or express implied receipt condition to the readily this stern rule apparent: is of a job benefit or of a tangible the cause When gave] its employer [supervi- [the job detriment in liability order to create sory personnel] authority employ- to fire under theory of sexual harassment. 29 ees, it accepted also responsibility to rem- 1604.11(a)(1) C.F.R. (2)& As edy any harm caused supervisors’] [the disparate case, the typical treatment unlawful that authority. exercise of The employee deprived that she was modern corporate entity consists of the of a benefit job which she otherwise it, manage little, individuals who if qualified to receive of the employ- because any, progress in eradicating discrimina- er’s of a prohibited use in making criterion tion in will employment be made if the employment decision. See corporate is able employer to hide behind 953; 641 Fisher v. Flynn, F.2d at the shield employee of individual action. (1st gener- Cir. See Oil at Tidwell American ally Department Texas Community Af- (citation omitted). Burdine, 253-54, fairs v. U.S. 1089, 1094-95, 207 (1981); S.Ct. 67 L.Ed.2d necessarily It follows from this United States v. International Brotherhood that an is premise employer strictly liable Teamsters, n.15, by supervisors for sexual discrimination n.15. job tangible that causes detriment. See Willingham (5) Telegraph Publishing v. Macon Respondeat In a superior. typical Ti- 1975) (en F.2d tle an employer VII is held liable for banc). “Discrimination women is discriminatory supervisors actions of its less job prohibit which affect the benefits no serious than other forms of tangible of an race, employment on religion, practices ed and is to be ac basis of See, origin. Gay degree national v. Board corded same social concern e.g., College, Trustees of of unlawful discrimina given type San Jacinto 1979); Young H.R.Rep. Cong., v. South- tion.” No. 92d 1st Savings Association, U.S.Cong. (1971), reprinted western and Loan in 1972 Sess. coworkers, 160-61, F.Supp. at Friend harassment 2141. Sexual & Ad.News J., con (Butzner, Leidinger, is at 68 tangible job detriment resulting part), or part dissenting curring as dele- every bit form of sex discrimination workplace, EEOC strangers of Title even purposes terious to remedial 599, 609-10 Realty Corp., employment prac- Sage other unlawful VII as 1604. strictly (S.D.N.Y.1981); 29 C.F.R. § is & n.16 We hold an tices. any person 11(e) (1981). capacity of supervisors of its liable actions a hostile or offensive environment or sexual create amount discrimination or diminished necessarily detri- enhanced tangible resulting in authority employee. any degree to the subordinate 213; When a su upon America, F.2d at individual. Bank of Miller v. confers employee, Fed.Reg. (1981); pervisor gratuitously insults 1604.11(c) 29 C.F.R. § so his reasons 74,676-77 (Nov. 10, 1980) (commentary generally is- he does means. He acts outside E.E.O.C. his own thus conjunction proposed sued in he authority harassment). apparent scope But of the actual guidelines can supervisor. as a His conduct possesses v. Public Electric & Gas Tomkins Service the em automatically imputed be to (requiring 568 F.2d at actual or not 1048-49 of con- more so than can the conduct knowledge supervisor’s ployer constructive of ordinary employee.20 duct and failure take remedial action an to holding before liable for sexual employer quid pro quo case sexual typical The of job detri- involving tangible harassment different. fundamentally harassment is ment).19 ease, supervisor upon his the relies such to extort sexu holding requires apparent authority or actual recognize We that this There superior employee. from an differing respondeat treatment of al consideration pro case the quid quo. two harass- in the In that types claims in the of sexual lies him the pro quo supervisor In the case uses means furnished quid ment cases. classic prohibit the employer accomplish an is the conduct the employer strictly liable for scope of his supervisors, purpose. of its in the work envi- He acts within the while ed fire, “hire, plaintiff apparent authority the or ronment case actual of promote.” Miller v. Bank higher management discipline knew or should have 213; America, v. 600 F.2d at see Calcote known of sexual harassment before the Inc., Foundation, be employer may held liable. The rationale Texas Educational acting underlying supervisor this at 98. Because the difference in treatment scope of the two cases is The envi- at least the easily apparent stated. within employer employee authority ronment in an works can entrusted to him the decisions, degree by be he makes his equal employment rendered offensive in an when supervisors, Jack- fairly imputed the acts of see can be to the source conduct son, 943; Borden, Compston authority.21 641 F.2d at of his 81-18, Empl.Prac. reject No. 27 Fair argument E.E.O.C. Dec. 19. We in Tomkins an may 3, 1981). employer escape “responsibility” (BNA) (April for sexu- Cas. type merely by taking al harassment of this case, employer respon- rule in Under the this subsequent remedial action. Such action creating sibility supervisor acts of a employer may, course, mitigate dam- is coextensive an offensive environment ages, way employer’s it in no affects an liability employee. Under for the acts of an its liability. employer regulations, is re- the E.E.O.C. an employees sponsible if the for acts of its Taylor Jones, 20. See known of the “knows or should have Empl. Taylor, Vinson 23 Fair does immediate (BNA) conduct not (D.D.C.1980); [and take] Prac.Cas. E.E.O.C. appropriate -432, 29 C.F.R. corrective action.” Dec. No. 70 EEOC CCH Dec. [1968-1973] 1604.11(d) (1981). (Jan. 1970); Seymour, § Sexual ¶ Finding Harassment: under of Action Cause superi- respondeat VII, law 21. The common rules of Title 30 Lab. L.J. But always appropriate to suit the Hosp. will not be Lucero v. Beth & Israel Geriatric Center, purposes (D.Colo.1979); Title VII. See remedial broad alleged Sellgren sexually had never case, proposi- has all In this Henson coworker, Dicks, tioned Henson’s female quid pro quo of the elements of a dispatcher and that no male had at- ever judge, The district harassment claim.22 tended the police academy. however, did Henson’s testimo not believe ny Sellgren upon sexual favors insisted specific findings Both of these factual are as a to her attendance condition clearly erroneous. There is no evidence specify He whether his academy. did not whatever indicating record that Sell- credibility choice was based demeanor Indeed, gren proposition did not Dicks. corroborating or lack of evidence. How when attorney sought Henson’s to question ever, found that two he circumstances very on subject, Dicks sus- which would have corroborated objection tained the defendant’s tes- Also, not he story Specifically, timony did exist. found relevancy grounds.23 un- Note, supra (E.D.Mo. note In this Credit 1026-29. however, imposition liability upon 1981), Hall v. and in F. O. Thacker quid quo pro (N.D.Ga. harassment by supervisors appears gen committed be in agreement principles. eral common law phrase prima We facie would case (Second) Agency See Restatement closely Doug- terms that more las, track McDonnell 219(2)(d) (master is liable for tort of his serv substantially although our version is not accomplishing if ant the servant “was aided in different from those of the other two courts: agency the tort tion”). the existence of the rela (1) protect- is a member of the Costle, But cf. Barnes class; ed J., (D.C.Cir.1976) (McKinnon, concurring) (2) subjected She was to unwelcome sexual (supervisor acting apparent scope within not opposite to which members of the employment when he extorts sexual considera subjected; sex had been exchange tion from subordinate favor (3) qualified applied posi- She and was for a job action). able accepting ap- tion for which the was plications; 22. For the benefit of the district court on re (4) despite qualifications That her was she mand, prima will we the of a discuss elements rejected; quid quo pro facie case for sexual harassment. (5) rejection, position That after her the re- is, course, prima The facie case of a variation open mained and the continued to upon pattern the established in McDonnell accept applicants possessed complainant’s who Green, Douglas Corp. v. U.S. & qualifications. n.13, n.13, 93 S.Ct. 1824-25 & L.Ed.2d prima applica- While the above facie case is of circuit in District Columbia remand, prima ble to Henson’s claim on the (D.C.Cir. may vary depending upon specif- facie case 1981), the proposed following the formula: Green, Douglas ic facts. McDonnell prima illegal To establish a facie case of n.13, Specifically, at 802 93 S.Ct. at 1824 n.13. promotion denial of in retaliation the there will be cases in which to submission plaintiffs by refusal sexual of advances her express unwelcome implied is an sexual advances or supervisors, plaintiff (1) the must show that receipt condition to the of a benefit. pattern practice she was a a victim of of cases, 1604.11(a)(1). 29 C.F.R. an such sexual harassment attributable to her em- prove part prima need not of the ployer (2) applied . . . and that she for and actually applied given facie case that she for a promotion was denied a for she which was position application since such an have technically would eligible of she and had a been futile. Cf. Bhd. Team- expectation. International of reasonable States, sters v. United The court for the of in district Heelan Colorado (1977) (plain- v. Johns-Manville applying posi- tiff who (D.Colo.1978), was deterred from proposed a similar formu employer’s tion of la: because known discrimina- policies relief). tion is not from plaintiff (1) barred plead and that [A] supervi- submission to sexual a advances of attorney After Henson’s asked Dicks wheth- employment, sor (2) awas term or condition of Sellgren er her, had ever made advances toward substantially plaintiffs this fact affected attorney City object- of Dundee employment, (3) employees oppo- and of grounds Sellgren’s reputation ed on was way by site sex were in not affected the same objection, not stating: issue. The court sustained the these actions. (footnote omitted). The formula in Heelan was judge cited district this case and The trouble is that discrimination on Meyers courts v. I. T. T. Diversified account sex account of means on of because a of the availa- upon clearly erroneous view evi- documentary and testimonial disputed When corroborating bility evidence.25 of dispatchers two male proved dence faulty proceeds a upon of fact finder of Dundee under hired finding based theory credibility, assess its police to the program were sent CETA stand.26 solely that assessment cannot upon Henson time that academy the same Re- Recovery, Keystone Division Custom of actively sought to attend.24 NLRB, sources v. F.2d course, is, of loathe to Here, This 1979).27 judge’s court thor- district finding a upon based situa- a factual ough misapprehension reevaluate the factual on the judge. testimony of the district credibility surrounding choice tion Henson’s District, pre- academy assignment County police issue of the v. Jones School Barnes credibility case, however, deferring is his there vents us from at 494. In this enti- is finding. We conclude that Henson risk that the district a substantial for sexual tled to new trial on claim credibility based his evaluation of corroborate credible evidence to scintilla of understand that. Un- she is female. You 81-23, differently version”); [plaintiffs] Dec. No. are treated E.E.O.C. der the statute females (June wages, employment, males than hours advancement, opportunities support 1981) (no those sorts claim reasonable cause to —all things, essentially advancement of was “abso- harassment because there somebody the Plaintiff I don’t other than lutely supervisor had ever that her no evidence It think is relevant to this case. material or subjected employees ad- to sexual other be, says might depending what he after- no other corrobora- because] vances . . . [and ward. I I will am not sure. sustain tive substantiate existfed] evidence already objection point. You have Party’s supervisor Charging claim that her general indicated his course conduct her”). made advances toward language, his I will sustain that et cetera. testify objection. say If he should Additionally, circuit has the former fifth any- never with this Plaintiff he body did this appeals court will not made permit that the it clear they opportu- have else then would “ ‘bootstrap’ court its the district nity testify. they stating findings conclusions course, Sellgren testified Of never because credibility v. H. are .. . ." Marable based judge granted district the defendant’s motion Assocs., Walker & 1981). involuntary and Dicks never dismissal on the Marable instructive While ques- opportunity to answer the allowed appropriate court relation between the district tion. regarding appeals and on matters the court Specifically, Parnell William Robert and credibility, decision it does not control our dispatchers Young who male were were both Marable, there documents here. In were academy. prov- allowed attend the This was testimony undisputed the that established Henson, testimony through by undisputed en plaintiff’s irrespective right the to recover Dicks, personnel and Robert Owens. files weight plaintiff’s personal the testi- accorded men introduced evidence of both that were into mony. Hen- That is not the case here since they by Henson that attended the also showed testimony establishing son’s is crucial police academy. Sellgren demanded sexual considera- whether tion from her. alleged 25. We note in a case of that questions close harassment which involves credibility Recovery recognize that is a We Custom interpretation, subjective the ex- findings case in which the factual of an admin- istence of evidence or lack corroborative the agency were because of a istrative faulty theory overturned likely is be crucial. thereof evaluating credibili- a witness’ know, credibility judge based his all we finding wholly upon the ty. policy that the We think considerations perception erroneous his equally are in the con- behind this rule forceful corroborating Hall the lack of evidence. Cf. findings court’s text of a district factual Empl.Prac.Cas. 24 Fair v. F. O. Thacker theory. credibility incorrect are based on an (district judge (BNA) (N.D.Ga.1980) Mach. testimony Cf. NLRB v. J. M. plaintiff’s on sexual did not credit 1969) (“[i]t generally is held that “virtually it was uncorrobo- advances because by jury, judge agency a deter- rated”); whether made D. H. Holmes Neidhardt v. credibility (E.D.La.1979), is unless mination of nonreviewable documentary mem., 1980) (the there uncontrovertible evidence is aff’d (citations physical plaintiff’s it” or omitted)). fact contradicts account district did not believe not a because “there is of sexual harassment

harassment which allegedly prevented her whether it “knew or should have known” of attending from the police academy. the unlawful conduct. I would hold that a woman in the workplace should be able to PART, IN IN AFFIRMED REVERSED obtain relief an employer when her PART, AND REMANDED WITH IN- supervisor creates a hostile working envi- STRUCTIONS. ronment without having the employer knew about it. An employer del- CLARK, Judge, concurring in Circuit egates responsibilities certain to its part supervi- dissenting part: sors, certainly one of which is to create a Although agree major- I with most of the pleasant working environment. If the su- I ity opinion, dissent from several of its pervisor position hostile, uses his to create a First, conclusions. I take with issue the environment, sexually harassing work majority’s “[wjhere, here, statement employer should be liable. plaintiff employer seeks to hold the responsible for the hostile environment cre- statement, support of its majority plaintiff’s ated supervisor or cowork- Bundy cites 943 & er, she must show that the employer knew (D.C.Cir.1981), n.8 and Vinson v. Taylor, 23 or should have known of the harassment Empl.Prac.Cas. (BNA) 37, Fair (D.D. question and failed to prompt take Vinson, remedi- C.1980). however, did involve a al action.” Majority opinion (foot- at 905 hostile environment created the plain omitted). agree note I with this statement supervisor. Moreover, tiff’s Bundy coworkers, insofar as it applies to but I employer “had full notice of harassment believe that the majority is incorrect to committed by agency supervisors and did apply the “know or should have known” virtually nothing to stop or even investigate requirement to situations where the hostile practice.” Thus, 641 F.2d at 943. environment is plaintiff’s created Bundy court was not with ques faced supervisor. tion whether an employer is liable for its supervisor’s creation of a hostile environ “Sexual harassment” is defined employer when the is unaware of the 1604.11(a)(3) C.F.R. to include § “[u]nwel actions; supervisor’s merely held the advances, come sexual requests for sexual employer liable where it was aware of the favors, and other verbal or physical conduct supervisor’s Furthermore, actions. of a sexual nature ... when .. . such con Bundy opinion quotes with approval purpose duct has the or effect of unreasona regulations, 1604.11, bly spe C.F.R. interfering with § an individual’s work performance cifically state that the “employer respon or creating an intimidating, hostile, sible for discriminatory acts of its ... offensive su working environment.” added.) (Emphasis pervisory employees respect to sexual (c) Subsection of 29 C.F.R. 1604.11 ... provides regardless of whether that an “is responsible for its acts ... knew or even and those of its should have ” . .. supervisory employees respect known of the acts.... F.2d at 947. regardless facts, ... In view of of wheth these I believe that er employer knew or majority should have known has misread Bundy and Vinson. of their (d) occurrence.” pro Subsection I also differ with the statement vides, however, employer that an is not majority that capacity any person “[t]he liable for acts of sexual harassment by co to create a hostile or offensive environment workers unless the employer knew or should necessarily is not enhanced or diminished have known of the conduct. degree of authority employer which the regulations

These made a clear distinc- confers Majority individual.” tion between a hostile environment opinion created my opinion, is not by a supervisor and one created aby co- assumption. Clearly, a correct supervisor worker, and provide that the employer is by position virtue of his is enhanced in his liable in the former situation regardless ability to create an offensive environment example. for janitor, compared

when an environ- creates such supervisor

When a

ment, apt to com- employees are women for fear of retaliation.

plain the “knew disagree I summary, placed

or should have known” restriction a hostile liability employer of an I supervisor.

environment created holding on this majority’s

note that in this unnecessary to the decision

issue is had actual employer

case because here the unlawful acts. In supervisor’s

notice of the situations, always lia-

such address prefer

ble. I would that we not where we

this issue until faced with a case majority it. has cho-

must decide Since case, I in this

sen to address the issue I majority’s conclusion.

dissent from employ- supervisory

would hold that when a envi-

ee creates a hostile or offensive work through

ronment whether it regardless is liable supervi-

knew or should have known of extent,

sor’s To this I dissent. actions. Jr., Plant, PLANT,

W. H. and Doris D.

Plaintiffs-Appellants, America,

UNITED STATES

Defendant-Appellee.

No. 81-7541. Appeals,

United Court of States

Eleventh Circuit.

Aug. White, Arant, Rose & Edward

Bradley, Ala., Selfe, plaintiffs- Birmingham, M. appellants. F. Mary Fahey, L. John Duffy, T.

Robert Gen., L. Michael Murray, Acting Atty. Asst. Section, Chief, Dept. of Appellate Paup, C., Div., D. Justice, Washington, Tax defendant-appellee.

Case Details

Case Name: Barbara J. HENSON, Plaintiff-Appellant, v. CITY OF DUNDEE, Defendant-Appellee

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 9, 1982

Citation: 682 F.2d 897

Docket Number: 20-12107

Court Abbreviation: 11th Cir.