ORDER
The court has before it Defendant State of Alaska’s motion for summary judgment based upon the theory that Plaintiff, hav *79 ing recovered for job-related injuries under the workmen’s compensation laws of the State of Alaska, is barred from any recovery in this action under Title VII of the Civil Rights Act of 1964 1 , as amended by the Equal Employment Opportunity Act of 1972 2 , (herein “Title VII”) and from any recovery under Alaska’s employment discrimination statutes, AS 18.80.200 et seq. By way of opposition, Plaintiff has filed a reciprocal motion to strike the State’s third and fourth affirmative defenses (Plaintiff styled it as a motion to strike the fourth and fifth affirmative defenses) which raise the same question.
At oral argument, Defendant State of Alaska conceded that Plaintiff’s workmen’s compensation recovery is not preclusive of a claim by Plaintiff under 42 U.S.C. § 2000e, et seq. By agreement of the parties, the question of whether Plaintiff’s recovery in workmen’s compensation bars an action under AS 18.80.200 et seq. was deferred to permit consideration of a further motion recently filed by the State of Alaska which raises a preliminary question regarding whether this court has jurisdiction under any circumstances over Plaintiff’s pendent claims, including that under AS 18.80.-200 et seq.
The court also has before it a motion for ruling on the law of the case. By this motion the State of Alaska seeks to have the court rule on the question of whether a claim under 42 U.S.C. § 2000e-2(a)(1)
3
requires proof of employer knowledge of illegal sex discrimination where the basis for such claim is that claimant’s supervisor has created a hostile work environment. The parties seem in agreement that employer knowledge of alleged sex discrimination need not be proved in a “quid pro quo” case where a claimant has shown a tangible job detriment, e.g., termination of employment or abolition of the job, etc. This appears to be settled law. An employer is held strictly liable for a supervisor’s discriminatory acts against a subordinate employee where tangible job detriments are proved.
Henson v. City of Dundee,
As a preliminary matter, this Court notes that no party has questioned that at least four elements must be proved by a Title VII claimant. Those four elements are discussed in
Henson. Id.
at 903-04. The State of Alaska relies upon
Henson
for the proposition that in hostile work environment cases, employer knowledge or constructive knowledge is a fifth element which a claimant must prove.
Id.
at 905.
Henson
so holds under circumstances where the claimant tried but failed to make a case of wrongful discharge in violation of Title VII. In
Henson
the defendant had contended, and the district court agreed, that even in a hostile work environment case, a claimant must prove some tangible job detriment. In reversing the latter holding, the Eleventh Circuit relies upon and finds applicable to sex discrimination cases the holdings in race discrimination cases. In the latter cases, the Fifth Ciruit has found that “terms, conditions, or privileges of employment,” 42 U.S.C. § 2000e-2(a)(l), include “the state of psychological well being at the workplace.”
Id.
at 901,
citing Rogers v. EEOC,
*80 Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets. A pattern of sexual harassment inflicted upon an employee because of her sex is a pattern of behavior that inflicts disparate treatment upon a member of one sex with respect to terms, conditions, or privileges of employment. There is no requirement that an employee subjected to such disparate treatment prove in addition that she has suffered tangible job detriment.
Id.
at 902. For the foregoing proposition, the Eleventh Circuit also relies upon
Bundy v. Jackson,
Turning to the point now before us, the Court in
Henson
proceeds to set out the elements which it requires a claimant to establish in a hostile work environment case. As already suggested, the fifth element which the Eleventh Circuit imposes upon a hostile work environment claimant is characterized as
“respondeat superior”, Henson,
The court having found that Henson had made a
prima facie
ease for violation of Title VII, the district court dismissal of her claim was overruled and the matter remanded for a new trial. At this juncture it will be pertinent to note that the appeal did not raise the question of whether employer knowledge was in fact an element of a claimant’s case under 42 U.S.C. § 2000e-2. We also note that it is not all that clear that
Henson
was purely a hostile work environment case. It seems clear enough from the recitation of facts as well as some additional issues argued in
Henson
that claimant ultimately resigned her employment and in litigation claimed a constructive discharge under Title VII.
Henson,
For her part, Plaintiff here relies upon the decision of the United States Court of Appeals for the District of Columbia in
Vinson v. Taylor,
At oral argument, Defendant State of Alaska contended that Vinson was in reality not a hostile work environment case but, rather, just another case of lost, tangible job benefits. 4 While the circuit court’s recitation of the facts in Vinson could lead one to believe that the case involved a loss of tangible job benefits, it is very clear that the court analyzed and decided the case as a hostile work environment matter. In this regard, the circuit court recognized that a
*81 Title VII plaintiff has two avenues of claim open to him or her:
The first was recognized in Barnes v. Costle [561 F.2d 983 (D.C.Cir.1977) ], where we held that abolition of the job of a female employee because she spurned her male superior’s sexual advances was an infringement of Title VII. [Id. at 992.] The second approach is illustrated by Bundy v. Jackson, [641 F.2d 934 , 946 (D.C.Cir.1981) ] decided after the district court’s judgment herein, where we sustained a Title VII cause of action in favor of a woman employee seeking relief simply for pervasive on-the-job sexual harassment by her superiors. [Id. at 943-44.]
Vinson,
Vinson’s grievance was clearly of the latter type and, accordingly, her case counseled an inquiry as to whether Taylor “created or condoned a substantially discriminatory work environment, regardless of whether the complaining employees lost any tangible job benefits as a result of the discrimination.” [Citing Bundy v. Jackson,641 F.2d at 943-944 (emphasis in original).]
Id. at 145.
This court’s analysis of Henson and Vinson leads to the conclusion that, even in absolutely identical hostile work environment cases, the Eleventh Circuit and the D.C. Circuit would quite possibly, although not necessarily, reach contrary results on the question of whether employer knowledge is a requisite to such a claim. What is very clear, however, is that only the D.C. Circuit of those discussed by the parties has faced this question squarely and ruled upon it after full exposition under our adversary process. It is particularly significant to this court’s thinking that the district court decision in Vinson was relied upon by the Henson court, and the D.C. Circuit has now reversed that initial Vinson decision.
It should also be noted in evaluating
Henson
and
Vinson
that
Bundy v. Jackson,
After a careful analysis of 42 U.S.C. § 2000e, the legislative history of that statute, and the regulations implementing the statute adopted by EEOC, the D.C. Circuit expressly held that an employer who is not on notice of sexual harassment cannot escape liability, even in a hostile work environment case; and in so holding, the D.C. Circuit also expressly rejects the idea that the common law doctrine of respondeat superior is either a necessary or an appropriate foundation or tool for interpreting Title VII. Id. at 150-51. In the latter regard, the D.C. Circuit pointedly observes that:
*82 Confining liability, as the common law would, to situations in which a supervisor acted within the scope of his authority conceivably could lead to the ludicrous result that employers would become accountable only if they explicitly require or consciously allow their supervisors to molest women employees. While modern courts seem more inclined to treat intentional misconduct on the job as arising out of and in the course of the employment, and thus as providing a basis for liability under a somewhat expanded theory of respondeat superior, there simply is no need to so confine either the analysis or the solution where Title VII applies.
To hold that an employer cannot be reached for Title VII violations unknown to him is, too, to open the door to circumvention of Title VII by the simple expedient of looking the other way, even as signs of discriminatory practice begin to gather on the horizon. [Citations omitted.]
Id.
at 151. At this juncture, the D.C. Circuit cites and quotes the Ninth Circuit in
Miller v. Bank of America,
After some further analysis of the foregoing problem the decision concludes that:
A requirement of knowledge by the employer of the Title VII transgressions by supervisory personnel would effectively eliminate vicarious Title VII responsibility altogether. It would reserve Title VII liability for only those employers who failed to redress known violations — a direct, not a substitutional, theory of attribution. This would be a retreat from the level of protection Title VII has consistently and designedly afforded, and take a backward step we refuse to endorse. [Citations omitted.]
Id. at 151-52. This Court adopts the holding as well as the reasoning of Vinson as set out above.
This Court recognizes that hostile work environment cases present some especially difficult problems for the finder of fact. Without some tangible event — tangible job detriment such as a refusal to hire, a termination without cause, or a refused raise in pay or promotion — the court can find itself with precious little objective evidence of employer wrongdoing. Worse yet, in a pure hostile work environment case, the Court perceives that it will more likely than not be confronted with diametrically opposed testimony from the employee and the alleged offending employer-supervisor. As a consequence, one must necessarily anticipate arguments such as: “If the hostile and offensive sexual harassment were really going on or were that offensive, plainly the employee would have quit the job.” The Court is concerned that this argument would in many if not most cases be specious. The practical problem is that the employee who stays on the job the longest and puts up with the most offensive sexual harassment is more likely than not going to be the employee who is the most dependent on retaining the job. Worse yet, this same employee is likely to be the one most reticent to complain, and thereby pass knowledge to a higher supervisor, lest he or she be confronted by the same kind of response that Bundy received when she sought to complain — that is, her complaint was not taken seriously, poor performance ratings started appearing, and ultimately a promotion was denied.
Requiring knowledge on the part of the employer in a hostile work environment case might very well provide the court with an easy tool to use in deciding many cases, but this court fears that such a requirement holds the potential for grave injustice as well as subversion of the purpose of Title VII.
So far as this Court is aware, the Ninth Circuit Court of Appeals has not addressed the question which we deal with here.
Miller v. Bank of America,
The foregoing brings this court to a final observation on the subject. The distinction above alluded to between “tangible job benefit” (“quid pro quo”) cases and “hostile work environment” cases is often discussed by courts, but this court finds it an extremely slippery concept.
See Henson,
This court concludes that employer knowledge is not an element of this Title VII sex discrimination case. 6
Notes
. Pub.L. No. 88-352, tit. VII, 78 Stat. 253 (codified as amended at 42 U.S.C. § 2000e et seq. (1982)).
. Pub.L. No. 92-261, 86 Stat. 103.
. 42 U.S.C. § 2000e-2(a)(l) provides in pertinent part:
(a) It shall be an unlawful employment practice for an employer—
(1) ... to discharge any individual, or otherwise to discriminate against any individual with respect to ... terms, conditions, or privileges of employment, because of such individual’s ... sex____
. In fairness to counsel for the State who argued this case, it appears that the matter was thrust upon him with little notice or opportunity to prepare. This is indeed unfortunate since counsel’s hurried interpretation of Vinson caused him to argue an absolutely wrong basis for distinguishing this case and Vinson.
. This court thinks that the D.C. Circuit Court never did so hold. At
Vinson,
Today, however, we are confronted by the question that was not directly and actively litigated in Barnes or Bundy: whether Title VII imposes upon an employer without specific notice of sexual harassment by supervisory personnel responsibility for that species of discrimination.
. This order does not require the entry of any judgment by the Clerk of Court.