Paulette L. Barnes v. Douglas M. Costle, Administrator of the Environmental Protection Agency

TAMM, Circuit Judge, dissents. any investigation

5. Neither was there The “substantial evidence” standard is not allegations truth of the any way that Allen had told modified in when the Board and its preju- e., [j. black that McClure was disagree. examiner We ALJ] intend consistently only diced —statements that Allen recognize de- supporting evidence having p. nied may made. 224 NLRB No. conclusion be less substantial when an decision, impartial, of ALJ’s JA experienced examiner who has ob- served the witnesses and lived with the case disagreed has drawn In this case the Board conclusions different from the findings concerning Board’s alleged ALJ’s than when he both the has reached the same 8(a)(1) 8(a)(3) findings Particularly conclusion. The § violations. of the examiner are along alleged important to be consistency because both considered violations raise with the questions credibility, probability testimony. and inherent we take note of the significance Supreme report, course, depends of his Court’s admonition in Universal Cam- NLRB, largely Corp. importance credibility era * * * 456, 469, particular (1951): case. 95 L.Ed. 456

Linda R. Singer, Washington, C.,D. with Goldfarb, whom Ronald L. Washington, D. C., brief, was on the appellant. Pace, Michael A. Asst. Atty., U. S. Wash- ington, C., Silbert, D. with whom Earl J. U. Atty., Terry, S. John A. Peter R. Reilly, Mary-Elizabeth Medaglia, Asst. U. At- S. tys., McMullin, and James F. Asst. U. S. Atty., filed, at the time the brief was Wash- C., brief, ington, D. were on the for appel- lee. BAZELON,

Before Chief Judge, and MacKINNON, ROBINSON and Circuit Judges.

Opinion for the Court by filed SPOTTS- ROBINSON, III, WOOD W. Judge. Circuit Concurring Opinion by filed MacKIN- NON, Judge. Circuit ROBINSON, III, W. SPOTTSWOOD Cir- cuit Judge: appeal This launches a review of an order of the District Court awarding a summary judgment appellee ground Title VII Rights 1964,2 of the Civil Act of as Equal Employment amended Oppor- 1972,3 tunity Act of does not offer redress appellant’s complaint that her at the Environmental Protection Agency was abolished because she repulsed her male superior’s sexual advances.4 We reverse. I Appellant, woman, a black hired Agency’s director of the equal employ- ment opportunity division, who also is black, as his administrative assistant at grade During GS-5. pre-employment in- terview, asserts, promised she he promo- tion to grade within ninety days. GS-7 Appellee 92-261, is the (1972), Administrator of the Environ- 3. Pub. L. No. 86 Stat. 103 as Agency, amended, mental Protection which the events seq. (Supp. 42 U.S.C. 2000e et §§ II precipitating allegedly transpired. this lawsuit solely by litigant He is a reason of his official position. Train, (D.D.C.) Barnes Civ. No. 1828-73 (order 9, 1974). Aug. VII, 2. Pub. L. No. tit. 78 Stat. 253 amended, (1964), seq. 42 U.S.C. 2000e et §§ activities, declares, These appellant “would commencement em- Shortly after claims, the director initiated she not have but for ployment, occurred sex.”8 [her] “(a) repeatedly favors quest for sexual seeking After unsuccessfully an informal join social him for activi- soliciting [her] matter, appellant, acting resolution of the hours, notwithstanding office ties after se, pro complaint alleging filed a formal so; (b) by refusal to do mak- repeated [her] sought that the to her from director remove which to were ing repeated remarks [her] his office when she to have an “refused nature; (c) repeatedly sug- by sexual with” after hour affair him.9 The com- cooperated that she with to if gesting [her] plaint charged on race discrimination based affair, her in a sexual him rather a gender,10 than circumstance which Appellant be enhanced.”5 would status appellant to by attributes erroneous advice “continually resisted that she states [his] agency personnel.11 A the hearing on com- finally . . . advised overtures plaint by was conducted appeals examin- notwithstanding his stated belief him er,' proffered who excluded evidence of sex ‘have affairs with many executives and found discrimination no evidence of their preferred she personnel’, their decision, race discrimination.12 its final strictly professional relationship remain a the Agency concurred in the examiner’s Thereafter, charges, the di- one.”6 she finding.13 with and in concert rector “alone Appellant then ap- obtained counsel and began a conscious agents [appellee], cam- pealed to the Civil Service her Commission. [her], to harrass and to paign to belittle There, duties, appellant’s attorney requested the job culminating all of her strip her Board of agent Appeals reopen . and Review to [appellee’s] in the decision to presentation record enable the of sex-dis- in retaliation to abolish [her] [her] Board, grant to him sexual favors.”7 crimination evidence.14 The how- refusal (appellant’s summary Appendix (J.App.) judgment exclusively dered 5. com- on the Joint plaint 5). record. See infra. The administrative conflicting note 18 r testimony the administrative 6). (appellant’s complaint J] J.App.29 6. hearing merely paralleled the same factual dis- putes by generated pleadings later —dis- r 6). complaint po J.App.29 (appellant’s The 7. putes summary foreclosing judgment. Fed.R. appellant held was eliminated and re sition 56(c). Civ.P. placed by by grade a a GS-12 filled woman, reassigned appellant was white1 J.App.3 13. —4. employee Agen grade in the a elsewhere GS-5 cy. subsequent 14. Counsel informed Board that discriminatory hearing pattern pro (appellant’s complaint J.App.29 8. f opposed motion of men as women had devel to J.App. 9. 1. oped regime. J.App.24. under- the director’s Counsel also told the Board that J.App. [appellant] incorrectly was advised as to the laws of sex discrimination 7).6 (appellant’s complaint J.App.30 The filing EEO counsellor who her assisted her agency personnel appel- told is that claim here complaint of race in this case discrimination solely personnel the matter lant grievance did to sex not amount discrimi- [Appellant] litigated her case on the basis note 14 nation. See infra. only, alleged omitting race discrimination Nonetheless, J.App.5-20. presentation grounds from vancy some evidence of her of rele- crept hearing. into the An- considerable amount evidence sex discrimination Agency arguably sup- testified which at least would have other female ported problems with the when she the claim of sex discrimination. . director refused to J.App. engage him. I this case in sexual with submit that involves erroneous to relations interpretation respect allegation justifying reopening the law oth- With to 91-93. ers, Moreover, differently appro- hear- . it is director testified record. charity priate contrasting unimpor- ing. as a matter of These versions fairness reopen litigation. stage where evi- As later record at this we tant point erroneously out, hearing dence is adduced in the course of the District Court denied support request of discrimina- appellant’s trial de novo and ren- claim for a woman, she negative find- was a agency’s but because ever, affirmed and refused the race discrimination ing on she in a engage refused sexual affair ground appel- reopen on request supervisor. her This is a controver- bring the did not case allegations lant’s sy underpinned subtleties of an purview Commission’s within personal relationship. inharmonious Re- Title VII.15 implementing regulations gardless of how inexcusable the conduct [appellant’s] supervisor might have Thereafter, complaint filed her appellant Court, been, theory, it does confining arbitrary District not evidence an averted,16 which we have allegations to barrier continued based violative of Title VII to sex on [appellant’s] sex.21 court, Fifth Amendment.17 and the appeal to this court then followed. limiting inquiry reexamination record,18 appellee’s granted administrative II summary in the view judgment motion By adoption of VII of the Civil discriminatory practices “the alleged Rights Congress Act of 196422 made by The encompassed the Act.” are not employment unlawful practice nongov- for [appellant’s] actions of retaliatory “alleged with employers, ernmental exceptions not [appellant] refus- taken because ” relevant,23 presently . . affair,’ “to . discrim- an ‘after request for hour ed his held, against any respect inate with type “are not the discrim- individual to the court terms, contemplated conditions, conduct the 1972 his . . . inatory privileg- or reasoned: Act.”20 court employment, es of such individu- . al’s sex . . [appellant’s] complaint f’24 The substance of Unfortu- against, nately, early history is that she was discriminated legislation Train, on a than that which was 19. tion originally basis other Barnes note memorandum alleged. opinion 1974), (Aug. J.App.163. 1at J.App.21-26. 15. 2, J.App. 20. Id. at 164. report discrimination. den tion between discrimination based on sex on Education Labor Committee House discrimination, and racial that both ringing in tones that statute— declared possess similar characteristics.33 had much to eight years passage after —still then, Not unexpectedly, during the thir- in elevate status of accomplish order to years teen enactment since of Title VII employment:28 women firmly has become established the Act that shown wom- studies have Numerous “artificial, arbitrary invalidates all and un- challenging, the placed in the less en are necessary employment barriers to when the the less remunerative responsible and less operate invidiously to barriers discriminate their sex on the basis of alone. positions impermissible on' basis of 34 disparate treatment blatantly Such Title VII has been in- classification[s].” objectionable view particularly voked to variety strike down wide prohib- specifically that Title VII has impediments equal employment opportu-

fact sexes, its nity since enact- including ited sex discrimination between the insuffi- tests,35 ciently discriminatory 1964.29 validated se- ment 92-415, (remarks (1964) S.Rep. Cong., Cong.Rec. 32. 92d 7-8 2577 No. 1st Sess. See 110 25. (re- (1971). Smith); Representative id. at 2581-2582 Green). Representative marks of 33. Id. at 7. (1964); Cong.Rec. 2804-2805 id. at See 110 26. 14511; id. 15897. Co., 424, Griggs 34. v. Duke Power 401 U.S. 853, 158, 91 28 L.Ed.2d 164 92-261, (1972), 103 42 No. 86 Stat. Pub.L. 27. (1971). 1972). seq. (Supp. II 2000e et §§ U.S.C. Co., 34; Griggs 35. v. Duke Power note 92-238, Cong., H.R.Rep. No. 92d 1st Sess. 28. Paper Rogers International 510 F.2d 4-5, p. Cong. Admin.News U.S.Code & (5th Cir.), grounds, vacated on other 1348 issues, 29. Id. (5th amended on other F.2d Cir. 1975); Indus., Inc., v. N. L. United States 5. Id. at (8th 1973). Cir. F.2d 371-372 Id. require- systems,36 weight-lifting somewhat from that niority of the 1972 Act re- ments,37 height weight standards specting employees. federal But it is be- gender.38 Congress those of one solely for yond Congress cavil legislated for fed- more in its hardly explicit have been could employees eral essentially guaran- the same there be no sex-based dis- command that tees sex that previ- discrimination any individual with re- “against crimination ously it private had afforded employees.43 terms, conditions, . spect to his proceed We thus to an examination ap- employment . . . .”39 privileges pellant’s claim with the assurance that any- employment measures equal thing sex constituting pri- discrimination in apply Act of 1964 did not Rights Civil vate is equally interdicted in The amendments Federal Government.40 the federal sector.44 Employ Equal effected to Title VII 1972, however, Act of Opportunity ment Ill protections extended substantive Title VII requires, alia, now inter as well as 1964 Act federal state personnel domain, affecting actions employees federal employees.41 local “[a]ll provides in agencies the 1972 Act relevant executive [federal] . shall be made any free from affecting employ- dis personnel actions [a]ll crimination applicants . based on ... ees or sex agencies . . .”45 in executive shall It is not argued, nor plausibly based be, made free could appellant’s elimination of race, color, religion, or national then within the Environmental origin.42 Agency Protection “personnel not a sure, actionQ” language contemplation To be the 1964 Act in within of this private reference differs provision.46 Nor can it be doubted that Corp., States v. Bethlehem United Steel 42. Pub.L. No. (1972), 86 Stat. Ill (2d 1971); (Supp. F.2d 658-659 Cir. United States 42 U.S.C. § 2000e-16 II Ry., Chesapeake & O. F.2d 588-589 denied, 1972), cert. See, g., Rawlinson, supra e. Dothard v. 1893, (1973); 36 L.Ed.2d 401 v. 38,-U.S. S.Ct. Robinson at-n.14, n.14, 97 at S.Ct. 2728 791, Corp., 799-800, 444 21 Lorillard F.2d A.L. n.14; Mancan, 53 L.Ed.2d at 799 Morton v. 417 (4th Cir.), dismissed, R.Fed. 453 cert. 404 U.S. 535, 547, 2481, 2474, U.S. 94 S.Ct. 41 L.Ed.2d 573, 1006, (1971); 92 S.Ct. 30 L.Ed.2d 655 Unit 290, (1974) (“[i]n general, may 298 be said Indus., Inc., 35, supra v. N. ed States L. note the substantive anti-discrimination law 479 F.2d at 366-367. embraced in VII was carried over and applied Government”); Hackley to the Federal Co., v. Southern Tel. 37. Weeks Bell & Tel. 408 Rodebush, 376, 404, U.S.App.D.C. v. 171 410 228, 234-236, (5th F.2d 12 A.L.R.Fed. 1 Cir. n.138, 416, 108, 136, n.138, 520 F.2d 142 148 1969). Rosenfeld v. Southern Pac. 444 Cf. (1975); Douglas Hampton, U.S.App.D.C. v. 168 1219, (9th 1971). F.2d 1225-1227 Cir. 67, 62, 976, (1975); 512 F.2d 981 Womack v. Lynn, U.S.App.D.C. 198, 164 504 F.2d 267 Airlines, Laffey F.Supp. 38. Northwest 366 (1974); 785, Dunlop, Parks v. 517 F.2d 787 763, (D.D.C.1974), aff’d 790 in and re- 1975). part, (D.C.Cir. 20, versed in No. 74-1791 Oct. 1976). Supreme has Court also outlawed Congress enacting 44. “The intent of in the 1972 which, weight although height and strictures extending coverage amendments to that Act its sexes, applicable disproportion- to both have a give public to federal was to those Rawlinson, impact ate on women. Dothard v. ' employees rights private employ- the same as - 2720, -,---, U.S. 97 53 S.Ct. enjoy.” Dunlop, supra ees Parks (1977). L.Ed.2d 786 S.Rep. 517 F.2d at See 787. also No. Cong., (1971). 92d 1st Sess. 39. 24. See text at note 45. text at note 42. Rights 701(b)(1), Act tit. of VII § Civil 2000e(b)(l) 42 U.S.C. asserted, however, It has been that “the Employment alleged Equal Opportunity Act of in discrimination the instant case was 11(a), 2000e(b)(l), 2(b)(1), policy, regulation, a 42 U.S.C. not statute,” result of a §§ §§ a or a 2000e-16(a) (Supp. Appellee II Brief for matter we job a “discrimination” —a dif effected when she resisted his action sexual advances. appellant particularly, More she ference states that he re- treatment — Agency, other of peatedly vis-a-vis told her that indulgence in a sexu- indication that the is no there affair since al would enhance her employee of the was any status; of that he endeavored affirmatively debated, The question similarly eliminated. to futilely proposition; consummate his appeal, on this is pivotal the issue and that, upon accede, her refusal he discrimination, in the circum whether the campaigned against her continued employ- appellant, was as a described stances ment department in his and succeeded “based matter law eventually liquidating position.48 her So " was, version, by her that retention her upon was conditioned submission to sex- written, and, statute as start with the We ual super- relations —an exaction which the measured, as we think so sought visor not have would appellant’s based on plainly was portrayed substance, much thesis, male.49 It is too late in the day Her gender. abolishing contend her that Title VII does not retaliated outlaw 510, 511, (1942); at notes 86 L.Ed. See text infra 834-835 address later. cf. York, appellee imply 40, 58, We not understand Sibron v. do New 392 U.S. 88 S.Ct. position, thereby appellant’s 1889, 1900, (1968); that abolition 20 L.Ed.2d Petite it, underlying distinguished States, from sex bias 529, 532, v. United by regulation unsupported or statute. 450, 452, (1960) (con 492-493 would, course, be fatal to Such concession any curring opinion); States, Gibson v. United the abolition. effort to defend 344 n. n. (1946); L.Ed. 338 n. 9 and whether that decision here- rendition of our 47. On eve of duty discharged by should be the District Court in, appellee for a remand of case to moved or, rather, by this court comes down a mat us that The motion informs the District Court. adjudicative feasibility. ter of argument” in this date of oral “[s]ince court appellee’s arrived, When motion to remand “the Service Commission Civil problem our resolution of the constructional position," its “[i]t has reconsidered already crystallized, prepared had were and we type that the view now Commission’s holding District overturn Court on by appellant conditioning alleged em- conduct ployment — issue, Moreover, today. as we do there is employee’s compli- benefits way knowing whether District Court supervisor’s demands for with his or her ance changed true, deem the Commission’s inter- sex discrimi- constitutes sexual favors—if sufficiently pretation persuasive to meaning warrant a VII.” of Title Mo- nation within the 22, 1977), apparently (June Appellee reversal of firm conclusion to tion to Remand reached; argues contrary the District Court that it had earlier 2. The motion and if opportunity not, appeal heavy to re-exam- be afforded it is a new another should —with light time, ruling its of the Commission’s expense pre- ine investment labor — stand, expresses present “view sumably [that] would follow. In these circumstanc- position represents es, new the Commission’s perceive adequate justifi- we are unable to statute and construction of the reasonable remand, requested cation for the and the mo- by the District hence should be followed tion will be therefore denied. omitted). (citation Id. at 2-3 Court.” supra 48. See at text notes 5-8. interpretation certainly agree that We given VII now Title Commission—the vitiating sex factor thus stemmed not agency primarily responsible administration for appellant’s superior that the fact what employment, Title VII in the area federal sexual-activity demanded was itself —which 2000e-16(b) (Supp. 1972)— II § see U.S.C. is that immaterial —but from the fact he im- powerful support to the identical conclu lends posed position upon her tenure in her then Griggs Duke v. Power sion we have reached. ostensibly condition which he would not have 433-134, supra 401 U.S. at upon employee. Appellant a male fastened 165; 854-855, at 28 L.Ed.2d at United S.Ct. flatly gender claims that but for her she would 8, 10, Chicago, City U.S. v. States importuned, nothing not 18, 20, (1970); 27 L.Ed.2d 12-13 Udall S.Ct. yet contrary appeared, and 1, 4, has as there is no Tallman, 380 U.S. 85 S.Ct. suggestion appellant’s allegedly not, however, that (1965). amorous That is L.Ed.2d supervisor is other than heterosexual. These say appellee the remand which desires that trial, proof inquiry responsibility are and the matters indicated. Judicial construe is solely remains, stage litigation governing Young this is see terms of statute sum, States, prima facie case of discrimination. In United for women which employment terms of dif- that she was only invited because she was a men,50 set for appreciably fer from those woman subordinate to the inviter genuinely which and reasonably hierarchy agency personnel.55 Put an- job.51 on the performance related to other way, she became the target of her superior’s sexual desires because she was a felt, however, The District Court woman, and was asked to bow to his de- appellant’s suit amounted to no more price mands as the holding job. her claim “that she was than a discriminated circumstance imparting high visibility to woman, against, not because she was a but the role gender in the affair is that no engage she refused to in a sexual because employee male susceptible was to such an supervisor.”52 with her In similar affair approach by appellant’s supervisor.56 Thus vein, appellee argued “[a]ppellant has gender cannot be eliminated from the for- allegedly employment denied enhance mulation which appellant advocates, woman, ment not because she was a formulation advances a prima facie rather she decided not furnish case of sex discrimination within the pur- the sexual consideration claimed to have view of Title VII. We accept been demanded.”53 cannot analysis charged the situation by appel It is clear that statutory embar womanhood, lant. But for her from aught go on sex discrimination in employment appears, participation her in sexual not confined to differentials wholly founded activity would never have been upon solicited.54 employee’s gender. On the con then, say, To that she was victimized in trary, enough gender is a factor employment simply because she contributing declined to the discrimination in a sub ignore is to the invitation the asserted fact way.57 stantial That this was the intent of posture portrays in its Appellee the record current 53. Brief for superior placing on a female subordinate a sub- stantial condition which he would supra. 54. See note 49 levy not seek to on a man. See note 55 infra. very The situation is different from instances of say It is no answer to that a similar condi- agency’s employees sexual affairs between an imposed tion could be on a male subordinate employment opportunity which are not tied to superior, a heterosexual female a sub- any way. gender by ordinate of either a homosexual su- perior gender. instance, of the same each Phillips Corp., 50. Cf. v. Martin Marietta legal problem would be identical to that 496, 497-498, confronting us now—the exaction of a condi- expressly pro- VII 615-616 which, sex, tion but for his or her against any hibits individual “discrimination] situations, would not have faced. These like term, respect with tions, condi- [the] bar, distinguished that at are to be from a privileges employment, because of superior bisexual who conditions the . such individual’s . sex . opportunities ment of a subordinate of either said, supra text at note 24. As we have gender upon participation in a sexual affair. In Equal Employment Opportunity Act of 1972 superior, the case of the bisexual the insistence protection upon now confers the same federal upon sexual gender favors would not constitute employees. See text at note 43. apply discrimination because it would to male and female alike. 51. The Act tolerates sex-based distinction occupa- ais “bona fide 56. See text at note 49. qualification” ques- tional for the 1964, VII, Rights 703(e), tion. Act of tit. Civil - 57. See cases cited infra note 63. We have 2000e-2(e) (1970). By appel- 42 U.S.C.A. § previously every dissimilarity held that assessment, not only lant’s alternatives were to employment respectively conditions set for the adversity submit to sexual blackmail or suffer impinges Dodge sexes on employee. Appellee, Title VII. In quite v. as an Giant understand- Food, Inc., 9, U.S.App.D.C. ably, 160 argue provision 488 F.2d does not of 1333 sexual (1973), finding qualify grooming occupation- different services can as a “bona fide stan- qualification” employ- dards for men for and women did al women in federal not violate the statute, ment. we observed that VII was not encompass intended to minor sexual classifica- supra employment opportu- tions which 52. See text “do not limit at note 21.

991 pre-school-age Nonetheless, children. readily apparent from a small Congress is since legisla- gender facet of the was significant a criterion highly determination but VII. When the bill a facie employability, prima of Title history tive violation of VII courts, VII was under consider- Title shown.62 Other incorporating Title was contexts, 1964, analogous similarly an amendment have ation in conclud- predicated only the sex ban to ed that distinctions expressly partly restricted gender though solely gender on was firmly based discrimination covered Like Title VII’s on sex the floor House.58 ban discrimination.63 defeated on Circuit, interpretation this as And we take an indica- administrative Fifth commanding awareness the de- Act deference64 is the congressional Equal tion of a Employment Opportunity such limitation effect Commission’s bilitating any attempt stamp pronouncement long that “so as had on sex is a would have irrelevant com- factor in application employer’s factors of” out sex-based marriage by rule female petence.59 forbidding ees, “such involves a application discrimina- Act, judicial both Interpretations tion based on sex.”65 administrative, than adequately more situations, understanding appreciation objectiona- In all of reflect this these Phillips v. ble embraced purpose. condition some- legislative thing more Corporation60 the Supreme employee’s gender, than the Martin Marietta but fact company’s gender refusal of em remained that Court held that was also significant degree. but not fathers of involved to ployment to mothers For while prima was facie sex some but of one children not all sex were pre-school-age condition, meaning subjected of Title no employee within affected, opposite were excluded from the VII.61 Not all women only picture those who had here.66 It does not employment, suffice to by making supra based 62. See text distinctions on immuta at note 57. .nities characteristics, personal rep which ble do not attempt by prevent resent Willingham Co., Publishing v. Macon Tel. sex, particular of a and which supra 57, 1089; Sprogis note 507 F.2d at v. employment disadvantages pose do not distinct Lines, Inc., 1194, (7th Air United 444 F.2d 1198 12, (foot F.2d Id. at 488 at 1337 one sex.” 991, Cir.), denied, 536, cert. 92 S.Ct. 404 U.S. 30 omitted). Fagan also National did, appel- ship.”69 that Were we that as the Court satisfied this char- say, District merely be- was eliminated but of reasoning lant’s acterization was the respond supervi- to to her she refused cause ruling underlying the court’s that dis- the Ap- for sexual favors.67 alleged sor’s call sex-based, not crimination was we would just coop- as her gender, as much pellant’s no have need to address it further.70 The eration, factor indispensible was an however, is, fact that we are as to uncertain which she com- job-retention condition of observation, the reach of the court’s and showing supervisor that the absent a plains, implications about to it is concerned which upon a male a similar condition imposed susceptible. co-employee.68 that If the court meant the conduct that, disposing in of We also note appellant’s supervisor to out attributed fell case, as Court referred to it “a the District side Title VII because it was underpinned by personal the subtleties controversy escapade relation- rather than an personal agency project, of inharmonious no state-sponsored plan infringe another then on a similar id. at and black did not department to to was returned aid loan another the Fourteenth Amendment. The Court rea- cleaning. En to the program anyone the Id. at 889. route in that soned neither foreclosed checks, pay four eligibility their final the office to collect gender, from for benefits because of by plaintiffs merely told that were their coverage but provided. removed one risk from the they are hired clean analyzed folks to “[c]olored As in each “[t]he Id. at 887. There were no alle- clean better.” program potential recipients divides into two gations of racial discrimination than groups pregnant non-pregnant and women — respect to this one incident. Over the persons. female, group exclusively While the first solely objection dispute that the related er’s the second includes members of both classification, id. at the court that held Gilbert, sexes.” supra General Elec. Co. v. discharge was violative Title VII because the note 429 U.S. at 97 S.Ct. at superiors plaintiffs’ Aiello, quoting at Geduldig L.Ed.2d su- require plaintiff perform pra, meant to 417 U.S. at 496-497 n. S.Ct. at admittedly heavy possibly dangerous and n. L.Ed.2d at 264—265 n. 20. was There cleaning bonding coating work of showing against no there were risks department they require not when protected not, men were and women were plaintiffs’ same work from white em- versa; fellow package vice or that the total of benefits Furthermore, ployee. [they] meant en- advantage women; gave an to men over by firing plaintiffs force the decision pregnancy the exclusion terfuge sub- benefits was a they perform when refused to that work. against for discrimination women. consequence above racial was decisions, they As we read these do not con- discrimination whatever motivation partly though done discrimination bottomed management may defendant sex, wholly or sex discrimination have been. By but some not all women. appeal, Ninth af- Id. On Circuit appraisal, Court’s men and women were treat- ruling firmed the on discrimination re- equally protection ed in terms conferred backpay. manded the case recalculation of disability plans, led view Slack, plaintiffs F.2d 522 appellant at 1095. Like in that there was no discrimination at all. More- asserts that she was confronted over, opinion suggests in case neither demands that would not made retreating the Court was from its decision sex, her but for her comply and that her refusal Phillips Corp., supra v. Martin-Marietta note job. with them led to abolition barring which invalidated a condition wom- here That demand was for sexual relations employment only they pre- if en school-age had consequence. supra. of no See note 49 children, at affected one else supra See text at note When, supra See all. text 60-62.

993 tections summary judgment against could be afforded Title VII for a support Generally speaking, an therefrom. derived discrimination extended to the individu- chargeable with Title VII viola- employer is al,74 single and “a instance of discrimination discriminatory practices tions occasioned may private form the basis of a suit.”75 To personnel.71 We realize supervisory illustrate, briefly suits have been enter- contravene should a where a charged tained woman that she knowledge employer’s policy without pregnant was fired because she was consequences are rectified when and the unmarried, notwithstanding the fact discovered, employer may be relieved discharged no other was woman for that But, responsibility under Title VII.72 reason,76 and where a male nurse asserted aware, involved so far as we are that he assignments was denied to care for exoneration position is not in to claim here patients, although female allegations theory. on that respect assignment were made with to the If, hand, the court was on the other of other male analogies nurses.77 Close saying that there was no actionable discrim emerge from situations wherein a black vic only employee one was ination woman was ostensibly per- terminated timized, A strongly disagree. we would sonality allegedly conflicts but was told employ impediment equal sex-founded probably job she not need the did succumbs to Title VII opportunity ment because she married anyway was to a white employees all though even less than pro- affected.73 The male78 and where a white gender are woman attrib- claimant’s See, ployee g., Young jury v. Sav. & 71. e. Southwestern had been afforded a trial his on Ass’n, 140, 7, (5th 144 n. 509 F.2d 145 Cir. claim—a Loan matter which the trial court was told 1975); Evangelical jury Anderson v. Methodist to reconsider on remand —and the had 723, Inc., (6th 1972); Hosp., 464 725 F.2d Cir. been instructed that it was incumbent Havens, 66, supra 7 note F.E.P.Cas. at Slack v. to show that there was a discrimina- Co., 890; Ostapowicz tory pattern v. Johnson Bronze 369 practice part, on the union’s 522, (W.D.Pa.1973), part F.Supp. aff’d in 536 and that an isolated instance of discrimination grounds, vacated in on other 541 F.2d would not suffice under the Act. Id. at 275. Co., (3d 1976); Tidwell v. 394 American Oil Cir. rejected appeal, This was and it 424, (D.Utah 1971). F.Supp. 436 See also 332 proof single was held that act of a of discrimi- Wilson, Sibley Hosp. U.S.App. v. Memorial 160 enough. Compare nation was Id. 14, 18, 1338, 1339-1340, 488 F.2d D.C. Lines, Inc., Sprogis supra v. United Air note (1973); Sugar v. 1342 Baxter Savannah Ref. where court held that the airline’s no-mar- (5th Cir.), Corp., 441-442 cert. 495 F.2d policy, riage only applied which was to female denied, 515, 42 L.Ed.2d flight flight attendants and not to male attend- Warner, (1974); F.Supp. McMullen v. 416 308 female, employees, ants or other male or violat- (D.D.C.1976). But see 1165-1167 Corne finding ed Title VII. 444 F.2d at 1198. Lomb, Inc., F.Supp. v. Bausch 163 & discrimination, prohibited the court held that docketed, (D.Ariz.1975), appeal No. 75-1857 effect of the statute is “[t]he be diluted 26, 1975). (9th Mar. Cir. adversely only because discrimination portion affects protected class.” Id. America, See, g., Miller v. Bank of e. (N.D.Cal.1976) (official F.Supp. 235-236 Wichita, Osteopathic Inc., Hosp. 76. Doe v. conduct, discourage policy bank to sexual (D.Kan.1971). F.Supp. by filing behavior and bank not advised of court held that it was irrelevant that there were Employer Depart- grievance with Relations discharged no other known females because of ment); Register Howard v. National Cash pregnancies past years, five unwed be- (S.D.Ohio 1975) (ra- F.Supp. 605-606 prohibits cause Title VII always slurs fellow investi- cial “any individual.” employees disciplined). gated and 73. See cases cited infra notes 75-80. Wilson, Sibley Hosp. Memorial U.S.App.D.C. 488 F.2d at 1342. 74. See text at note 24. Union, Dallas, Vuyanich King Republic Int’l 443 F.2d Nat’l Bank of v. Laborers F.Supp. (N.D.Tex.1976). employee alleged Al- There an 409 though charge denied that because of his race he had been filed with the Commission by Vuyanich only appear equal opportunity on his union’s one of race discrimina- tion, line, picket of Title VII. The em- the court noted that the statement in violation relationship

uted loss of her to her liberally objec- construed to achieve its 86 instances, a black man.79 In each of these tives; noted, recently as we ourselves it recognized although cause action was “requires interpretation by animated appear any did not other individual of purposes broad humanitarian and remedial gender the same or race had been mistreat- underlying proscription the federal of em- ed the employer.80 ployment It would be discrimination.”87 during At no time our intensive study of pointless speculate as to whether Con- this case have we encountered anything to gress particular type envisioned the of ac- support notion that condi- tivity job-retention which the condition al- summoning tions sexual relations between legedly appellant levied on would have ex- superiors are somehow ex- acted. As Judge Goldberg of the Fifth empted coverage from the of Title VII.81 it, put Circuit has so well explicit The statute in proscribes terms dis- Congress spe- chose neither to enumerate crimination “because of sex,”82 cific discriminatory practices, nor to eluci- only narrowly with exceptions defined com- date parameter in extenso the of such foreign to the pletely situation emerging Rather, pursued nefarious activities. legislative history here.83 similarly dis- path by being of wisdom unconstric- congressional purpose closes to outlaw tive, knowing change that constant is the any and all sex-based discrimination,84 order day seemingly of our and that equally any with other form of discrimina- practices present reasonable can which VII Beyond tion Title condemns.85 considerations, easily injustices these the courts have become the con- of the mor- sistently recognized that Title VII must be row.88 plaintiff “clearly color, religion smacks of sexual as well origin, any or national and that discrimination,” implicit racial difficulty since such is treatable measures other assumption disregard statement was the spouse legislative the male than will. Cf. Miller important Laird, economically 1034, is more F.Supp. v. (D.D.C.1972). 349 1044 might therefore the dismissal designating gender not have oc- as one of the founts from plaintiff curred flow, had been a black male instead “Congress discrimination must not choice, of a black female. Id. at 1089. has made the and it is not for us to Rodebush, supra disturb it.” Chandler v. Whitney Corp. v. Greater New York of Sev- 18, 864, 425 U.S. at 96 S.Ct. at Adventists, enth-Day F.Supp. 401 1366- at 433. (S.D.N.Y.1975). 1367 supra accompanying 82. See note 24 text. Berude, F.Supp. v. See also McCreesh 385 (E.D.Pa.1974) (denial summary 1368 Rights 703(e) (h), 83. See Civil Act of §§ & judgment in action where amended, 2000e-2(e) (h) as (1970). 42 U.S.C. §§ & alleged merely ee that she would have been promoted on time had she been male or non- white). 84. See text at notes 28-33. appellee’s plaint

81. We are advertent to that “if 85. See text at note 31. appellant presents the claim which were to be justiciable found be within the framework of See, g., Freight e. action, Henderson v. and, Eastern a Title VII the District in- Court — Inc., Ways, (4th 1972), 460 F.2d 260 evitably, Cir. this Court—will find itself embroiled denied, cert. 410 U.S. 93 S.Ct. involving in the resolution of controversies (1973); L.Ed.2d Oppor Reeb v. Economic claimed denials of enhancement Atlanta, tunity Inc., (5th 516 F.2d ground Cir. on the alleged of sex discrimination when the 1975); Culpepper Reynolds Metals personal basis the denials are rela- (5th F.2d Cir. tionships made ‘inharmonious’ the influence range stereotypes upon of a wide of sexual Penny, 277, 284, U.S.App.D.C. unenlightened 87. Coles supervisors.” Appellee v. 609, Brief for (1976). wholly 531 F.2d consideration This beside the point in this forum. We cannot assume that EEOC, Congress problem Rogers did not realize that 454 F.2d 1971), denied, this connection inheres also in claims of em- ployment cert. race, stemming 32 L.Ed.2d 343 1975). Where sexual cannot doubt favors are solicited in backdrop, we this Against discriminatory intercepts retaliatory return for benefits under VII judgment ap- expose here.89 threats to one’s deficiencies on charged practice reversed, accordingly job, the gravity might incident also from is pealed District Court constitute a violation of the criminal remanded laws.1 case side, consistent question On the civil arises proceedings whether further can held for the principal liable tort of opinion.90 agent. remanded. Reversed general “A agency, Under rules of Master concurring:

MacKINNON, Judge, Circuit subject liability for the torts is not of his acting scope outside the of of servants their in the remand concur I (Second) in which employment.” the area Restatement of narrowly limit would the 219(2) (1958). claim Agency present her The assert case petitioner-can sup- In Agency. suggestion Protection offers no that the sexual harass- Environmental following the I offer position, arguably scope ment was even within the of of port employer an liability of certainly of vicarious analysis would not be agents. by any acts of its understood federal employee. so objec- furthered no The sexual harassment for sexual employer liability of The government agency, the nor tive of was it by a employee imposed on harassment supervisor’s of the actual or part ostensible of to the law requires reference authority, nor was it even within the outer- tort, statutory inter- as well as agency perceived of what could be most boundaries must be that starting point The pretation. apparent authority. to be his act, of the agents generally, supervisors circumstances, re- the certain In employer. rule, however, general To the the Second closer, supervi- so that the lationship can be Agency of four ex- Restatement attaches em- of the termed a servant be sor could ceptions. The first three involve situations ployer. culpability naturally apply where “(a) principal: the the master intended the harassment of sexual act An (b) consequences, or the or the mas- conduct victim, rejection her caused reckless, negligent (c) or or ter was job, in her advances, damaged to be such non-delegable duty conduct violated a district Four other a tort. would constitute . None these .” question master considered have courts relevant, (and though government if the here; here has started from each presented than) knowledge offending su- prior a tort had no further proceeded have two propensity for sexual harassment pervisor’s v. Public Service Tomkins perspective. employees, liability might be (D.N.J. of subordinate 13 F.E.P.C. 1574 & Electric Gas Saxbe, negligence or reckless conduct. F.E.P.C. 1093 based 1976); Williams America, exception considers situations The fourth Miller v. Bank (D.D.C.1976); purported to act or to v. where “the servant (N.D.Cal.1976); Corne F.Supp. (D.Ariz. speak principal on behalf of the there Lomb, F.Supp. 161 & Bausch (1973) provides: 22-2305 1. D.C. Code § in the has been reached same result 89. The Saxbe, F.Supp. Williams v. District Court. verbally writing accuses Whoever or in (D.D.C.1976). that other We are aware expose publish any threatens opposite conclusion. reached the courts failings, [person’s] with infirmities or intent 71; Lomb, Inc., supra note v. Bausch & Corne compel person accused or 72; America, supra Tom v. Bank of Miller act, any . . . and who- threatened to do Co., 422 Elec. & Gas Public Serv. kins v. publishes intent such ever such latter, (D.N.J. we F.Supp. With imprisoned be accusation . . . shall disagree. respectfully must . . [etc.] remand, liberty appellant will be at On com- amend her motion for leave to renew supra. plaint. note 18 authority, activity or he mine whether is within the upon apparent was reliance the tort accomplishing scope employment. It was not so in this was aided Restate- relation.” case. might possibility existence of There still be a (Second) Agency, supra. holding ment the master liable for acts outside of the scope employment. excep- of that The disjunctive. exception is stated example tion is stated with an of another application here —it part first has no Prosser, L. kind of tort in W. Handbook of by an em- reasonably be believed could not 1971) the Law of Torts ed. 465-66: supervisor’s demands de- ployee questions The most difficult arise comply- or that in rived servant, where strictly personal demands the actual- ing with such reasons furtherance of his authority relied ly employment, temper loses his and attacks second of the ex- Concerning the er. plaintiff quarrel in a which arises out reading argue first it seems to ception, at Here, . . un- every case where vicarious much. too less issue, nondelegable duty some agent will have can liability is at found, the rule recovery, older denied way committing the tort some aided case, holding majority this is still the position that he holds. In this of by the the decisions. has supervisor tendency would not have been .in been a the male There cases, however, petitioner to ask for an “after- later to allow re- position a covery position ground were it not for his as on the that the employ- hours affair” provided peculiar immediate “boss.” ment has a opportunity and even incentive such for loss of tem- provided in the Restate- examples per; and there have been California deci- however, commentary, indicate that a ment sions which found something of an concept is involved. The tort narrower analogy to the workmen’s compensation accomplished by an instrumen- must be one acts, and have considered the inten- through conduct associated with tality, or tional misconduct arises out of and in the agency status. the the employment. course of situations, may the servant be join Even if this court were to what is of his to cause harm because able jurisdictions admittedly minority a of telegraph operator agent, where a as point, exception this the would not here messages purporting to come sends false apply. supervisor pro- While the has been the Again, . persons. from third vided with an the opportunity agency, it operated by him for manager of a store by any is no more than would be afforded to principal is enabled an undisclosed hardly employment setting, and can be said his posi- because of cheat the customers comprise to an “incentive” for such tortious tion. conduct. (Second) Agency of § Restatement liability There for being Comment no basis the present- in situation like the one employer commits the tort telegraph operator general ed in this under the law of mana- message; the store telegraph via a tort, there is even less basis for agency and way he through tort the commits the ger liability supervisor’s vicarious if the action supervisor sells. If the charges for what he the were characterizable under criminal quality the report the of falsified (Second) Agency of law. See Restatement work, might (argu- employee’s female within the defamation be a tort of ably) involved in but the tort exception; stated employer an Analysis liability of of entirely is committed advance sexual

the beyond violation of Title VII takes us milieu. outside tort, law but the common spheres provide in those operative rules vicarious the master-servant Turning basis, law, necessary starting point. From this same conclusion is tort liability in that, liability we are led to the conclusion if hurdle is to deter- the first Again, reached. employer, However, an it must be placed to be the action complained of does wording policy terminate with the mere sexual ad- vance. interposition present case, Without In the legislation. and in others'of law, type, statutory the common law would im- is alleged that the employee’s refusal to comply supervisor led the liability. pute take unfavorable employment-related actions VII of em includes its definition against her. If those employment-related one fits “any agent” of who ployer unjustified, actions were then the issue 2000e(b).2 general definition. U.S.C. § arises holding the employer liable for Court Tomkins v. Public The District those actions. Even where the tort com- Co., supra, empha Electric & Gas Service plained of arose employment setting, agent general reference sized if it was riot committed within the scope definition, though eventually that court supervisor’s authority, will the sexual advances involved found not be liable. purview of the su were outside there A different interpretation has fol- authority: pervisor’s lowed, however, where the tortious conduct quoted language suggests Insofar as the is also violative of the National Labor Rela- private acts for the benefit of done tions Act. While granting fullest rein supervisor imput- cannot individual be employer’s hire, promote, discretion to Employer purpose ed “good reason, fire for reason, a bad or no VII, finding a violation of Title this Court all,” reason statute, as interpreted disagrees. If a respectfully courts, by the impermissi- delineates certain acting purview within his authori- (such ble reasons as discrimination for or respondeat superior the doctrine of ty, members); union and when those driving whether he is may employed impermissible involved, reasons are the nor- company victimizing car or a female. mal of rules liability ap- vicarious are not Code, 42 Title United States See plied. example, For if a supervisor singles 2000e(b) expressly includes § out treatment, union members abusive employer of within agent meaning the neither actual nor constructive knowledge “employer.” of by the personnel required director is to find 8(a)(3) a section violation. The supervisor legislative scheme significant might even be acting the scope outside of relations, the governing employer-employee his employment contrary an- the Act, em- National Labor Relations defines policy still, nounced of the employer, hold “The ‘em- ployer way: a similar term that no provide violation occurred “would ployer’ any person acting includes as an simple means for evading the Act aby employer, directly of an agent or indirect- corporate personnel division of functions.” 152(2) (1970). ly.” 29 To the U.S.C. Allegheny Pepsi-Cola NLRB, Bottling Co. v. used, “agency” term is extent the how- 529, (3d 1962). 312 F.2d 531 ap- Cir. This ever, principles the usual are proach has even been so extended far as to invoked; and, seen, as has been those rules find a violation in the combination two an em- deny government liability acts, by two different of manage- members supervi- in a such ployer case as this. ment, where permissible.3 each was itself acting agent sor as an when he is of; hence, complained commits the tort departure As it is a from the law common rule, employment practice approach unlawful has been to liability adopted the “employer.” applying committed courts Labor National Rela- not, ly provision technically, apply sup- does know that This union government, parts porter, does, federal but other but it is sufficient if a foreman knowledge imputed VII do. amended Title because his will be employer entity. as an Texas Aluminum v.Co. discharge, NLRB, 917, personnel (5th 1970). In case of selective 435 F.2d 919 Cir. firing might director who orders the not actual- 998 statute, carefully might scrutinized tó duct be violative of the must be

tions Act employer it should be followed is in the best to know the whether determine cause, real related, significantly distinct context. and to come forward with an 2) explanation; employer, not the em- First, can be drawn whatever reliance can ployee, prophylactic establish rules history of the National legislative which, upsetting efficiency, without could Act, and its statement of Labor Relations potential obviate circumstances of dis- encourage bargaining, collective policy to crimination; 3) type at conduct issue Combing leg- to Title VII. inapplicable best, questionable is not undesir- Rights Act turns history of the Civil islative employers able to induce careful to err on employers up no direct statement possibly con- avoiding the side of violative vicariously liable. to be duct. However, Supreme has found Court premise The first rationale is the behind objective Congress in the en- that “The subjective many involving Title VII cases plain VII is from the lan- actment of Title See, decision-making. g., e. United States statute,” v. Duke Pow- Griggs guage of Inc., Industries, v. N. L. 479 F.2d 368 849, 853, Co., 401 91 S.Ct. er U.S. (8th 1973); v. Cir. Rowe General Motors (1971), relying on that L.Ed.2d 158 28 Corp., 457 F.2d 358 For alone, developed strong has rules language analysis a fine contemporary Title VII See, liability. e. Franks v. g., law, Lopatka, see A 1977 Primer on the Co., Transportation Bowman Regulation Employment Federal Dis- (retro- (1976) 444 47 L.Ed.2d crimination, (1977), 1977 U.Ill.L.For. 69 es- seniority required, despite relief sec- active (subjective decisions). pecially VII); 703(h) Paper Albemarle tion Stacy, Subjective in Employ- also Criteria Moody, U.S. S.Ct. Co. VII, Georgia ment Decisions Under Title (1975) (backpay even in the L.Ed.2d 280 L.Rev. 732 This rationale also faith); Douglas McDonnell absence of bad Supreme seems underlie Court’s Green, 411 Corp. v. U.S. S.Ct. liability strict formulation of in the related met, (1973) (prima facie case jury per- field of discrimination: when the showing of particular with no even centages large disparity, show a is for discriminate); Griggs v. Duke intent See, county explanations. state or to offer 424, 432, Power Partida, g., e. (1971) Castaneda 45 U.S.L.W. (“Congress has 28 L.Ed.2d 158 (U.S. 1977); March Alexander v. employer the burden of show- placed on Louisiana, (1972); 405 U.S. 625 Turner v. any given requirement must ing Fouche, 346, 359-360, relationship 396 U.S. a manifest S.Ct. (1970). in 31 L.Ed.2d 536 question”). legislative history can- rationale Accordingly, what second finds clearest ex- pression Supreme a supply suggested has been Court’s decisions not itself involving employment testing. Although the statute’s intent from its reading of VII, may permitted explicitly elements be overall scheme. Common U.S.C. 2000e-2(h) (1970), liability employer approach for the Court’s in found between Co., lia- employer Griggs supra, Title VII and Duke Power and Albe- conduct under above, Paper Moody, under the National marle Co. v. bility, as traced (1975) Generally, liability 45 L.Ed.2d 280 has Relations Act. S.Ct. dis- Labor (non-ex- played great suspicion.4 Employers a premised on one of three who has been haustive) 1) ambiguous general knowledge aptitude if con- use or tests are rationales: Albemarle, plain- trustworthy that a mate interest ‘efficient and the Court stated tiff, workmanship’. employer showing Such a after had shown an even related,” “job employer using be test be should be evidence that the merely ‘pretext’ that other tests or selection the tests as a for discrimina- allowed “to show devices, similarly racial tion.” 422 U.S. at without a undesirable employer’s legiti- would also serve the effect general discriminating, but such tests These inherently principles by no means ex- fair, or less relevant and can made more haust guiding be rules employer liability employer who controls their is the law, and it in labor they relations but provide do Hence, re- if discrimination imposition. focusing structure useful for on whether sults, he must answer. respondeat superior imposed should be in a particular case. Different conclusions re- law under National In labor relations Title VII contexts.5 sult varying Act, Where second rationale Relations Labor involved, sexual advances are it though must be Even has also been influential. (and candidly recognized at the that, outset statutory has a constitution- even employer when al) supervisor his directed from a right address who would takeover, predic- refuse, likely effects of union difficult the advances them- consequences tions about economic might selves be welcome. It cannot be fraught potential with unionization are presumed as a matter of law that the em- If implied or threat. such threats actual ployee subjected is to disfavorable treat- is liable. This is so develop, employer ment because of the advances. Once is who supervisors it is his make the even if established, however, that the employee has threats, making predictions since is inher- no interest proposal, then the em- dangerous employer could ently ployee may suffer from the continuation of simply his supervisors have instructed advances. And the eventual damage to her talking making predictions avoid failing accede, result, if that is a NLRB Gissell employees. generally is undeniably harmful. 575, 618, Co., Packing 1. The rationale of an employer's better position to know. Unlike the case of a Labor Relations Act also The National test, standardized employment employ- examples several of the third ra- provides er higher supervisor is not in the best tionale. That rationale underlies the rule anyone to know whether an em- adopted by the National Labor Relations ployee unjustly has been damaged on her courts, Board, and sanctioned Peer- job. The sexual advance of a Plywood (1953), less 107 NLRB 427 toward an is public seldom a mat- whereby speeches within employer 24 hours ter; invited, distinction between before the scheduled time an election are uninvited-but-welcome, offensive-but-toler- prohibited. every employer speech Not flatly ated rejected advances ordinarily period coercive, during time does not fall special within the ability of the require not a severe burden to higher supervisor to discern. campaigns relying ers order their without However, once complaint particular offensive on that tactic. On the union made, has side, advances “dual-purpose” employer’s the use of authoriza- role provide comparable example tion becomes far more serious. cards One of the device, four intrinsically opinions (besides troublesome and the district court the one courts, Board, us) currently and the have seen no harm in before that have considered inducing advances, an the practice. avoidance of sexual employer based liability spectrum, example, the 5. At one end of for At the other a end would be foreman’s un- supervisor’s persistent epithets provoked use racial and unforeseeable attack the undoubtedly employer’s particular job: lead to black workers on a the liability. Tracing it; through expected anticipate Vll the three ration- er could not be to no (1) enough, employer general prophylactic pro- ales: If uttered often the rule have could it, it; actually mulgated prevent or supervisors either knows of should know of to order (2) simple by it. A order announced the em- circumvent all occasions where such incidents (even any suggestion ployer might severely impede before of abuse arise would the efficient arisen) (3) problem. ordering has would obviate the of work. abuse, any Name-calling of kind is close to inducing complete is no harm from its there avoidance. incident, From a phase general of the more perspective, respon- on this precisely registers a com- deat superior apply, “When a female should and the common company ousted, the law rule abuse and should be of sexual whenever a plaint investigate, plaintiff that, her rather than can show to fire addition to chooses particular advance, may constitute dis- sexual corporate response and the retalia- tory advance, Tomkins v. on sex.” actions the maker of that crimination based Co., supra. agents employer & Gas Electric with knowl- Public Service edge charges of her assisted the retaliation complaint fairly present or impeded complaint. type That plaintiff’s su- allegations includes showing suffices to shift to the defendant sexual advances had been pervisor, whose the burden disproving agency agents of the Envi- spurned, induced other had, least, at the a callous disregard of Title Agency punish her ronmental Protection VII rights. 29); Agency that the (complaint at J.A. 2. Employer’s ability preventive to take wrongful prosecuting action in her guilty of steps in advance. An employer informing her that she could complaint, should promulgate rule that no sexual only race discrimina- advances bring a sex but by any supervisors were to be made (J.A. 30);6 that the Civil tion claim Service employees. The unique problem with this frustrating her Commission collaborated harassment, however, kind of is that its by refusing as a matter of law to claim potential is not confined to working hours. reopen hearings for evidence of sex Even if a no-advances adopted, rule were (J.A. 31); that “agents only great could difficulty be made to employees of the defendant” retaliated apply employees’ “own time.” against having her for filed an EEO com- (J.A. plaint 44—Count II of Amended Hence, there is no basis under this ration- Complaint); and that harassment both for ale to oust the common law rule filing refusing sexual advances and respondeat superior for acts outside the complaint only imposed by was not EEO scope employment. Nor do the facts of supervisor who had been made the ad- complaint this demonstrate a narrowly vances, supervisors” but also “other definable opportunity for the employer to (J.A. 85). within her specific formulate a preventive rule short of prohibiting all off-hours social contacts be- allegations These are sufficient to raise a supervisors tween which is suspicion under the first rationale that the ' question. of course out knew, employer itself or should have known, harassment, and hence analysis As the under this rationale un- respondeat superi- common law result folds, apparent it is that an employer could or should be considered reversed somewhat insulate itself from vicarious lia- However, rationale, under statute. bility by taking preventive certain meas- plaintiff still has substantial burden to least, ures. At the should be alleged, prove: EPA officials other than free from liability 1) posts vicarious if it own supervisor Barnes’ must be shown to (or government’s) firm’s policy against sex- incorrectly falsely plaintiff advised ual by supervisors, 2) harassment pro- processing complaint, and to have vides a workable mechanism for the prompt adversely job assignment, treated her reporting harassment, of sexual purpose frustrating her Title VII 3) mechanism the rapid includes issuance of it, charge punishing bringing her for a warning of, complained plaintiff prove effect. If can or the mere rejected notation of a sexual this, prevail. she should for possible advance future reference in power agency properly brought 6. The to control her com- is difficult to discern. The plaint against obligation adversary. it and its to see that it is the voluntariness, against case an issue is made of the Environmental Protection 4) opportunity complain- affords the Agency administrator, and its against not remaining anonymous. single ant supervisor. liability Vicarious of an employer would not attach at common law Here, policy of the the established federal under the facts here alleged, so the suit can discrimination,7 government against ap- sex be only maintained by reason of a statutory Environmental plies to the Protection exception. Drawing from labor relations Agency, Equal Employment and the 1972 law equal employment law, opportunity together with Opportunity Act8 Executive we can isolate general three rationales for (1967)9 provide Order No. 11375 a mecha- overturning the common law and imposing reporting adjusting nism for com- respondeat superior or principal-agent lia- plaints.10 steps important, Those broad bility. Only one of provides those a basis (where present pre- context ruling such a on these facts. That preventive feasible) they cise rule was suf- theory brought operation into by the liability. fice to defeat vicarious Neverthe- charge management that other personnel less, procedures along sug- detailed the lines petitioner, harassed they misled her in gested would sensitivity demonstrate more filing complaint, her that her supervisors particular problem of sexual ad- against retaliated her for doing so and that discrimination, and, subsequent vances and employer, her with knowledge of the facts conscientiously applied, if would come close her, alleged by ratified the discrimination assuring an employer protection had improperly imposed liability many vicarious cases. upon her. Those allegations if true would Inducing extra caution. ad- Sexual make a case that the Environmental Pro- may offensive, vances intrinsically Agency tection knew or should have known policy equal and no can be derived from the of the harassment involved.11 The case employment opportunity discourage laws to should be petitioner remanded to allow We them. are not here concerned with to prove chance this claim. epithets confusing racial union authoriza- cards, interest, tion which serve no one’s patterns

but with social that to some extent expectable.

are normal It is the abuse practice, practice rather than the

itself, that arouses alarm.

Accordingly, justification there is no un- impose

der this rationale to vicarious liabili-

ty upon employer. summary, I concur in the remand of ground but on a narrower than majority. brought Barnes has her suit policy Fed.Reg. (Oct. 1967) It is the Government of the 9. (adding government impermissible personnel United States and of the to the list of factors in decisions). provide equal oppor- District of Columbia to tunity persons, pro- for all hibit (agency discrimination 10. See 5 C.F.R. §§ 713.211-713.222 ad- race, color, sex, religion, judication origin, complaints); national promote equal (appeal C.F.R. §§ and to the full realization of 713.231-713.236 to U.S. Civil Commission) (1977). employment opportunity through Service a continu- ing program agency. affirmative in each similar, 11. It was on a limited basis that the 5 C.F.R. 713.202 § recently Fourth Circuit remanded Garber v. V, 2000e(a), 1975). (Supp. 8. 42 U.S.C. Products, Inc., Saxon Business 552 F.2d 1032 text notes 16. See 5-8. 3, J.App. 21. Id. at Train, supra note 4. The com- 17. Barnes sought (a) declaratory judgment plaint 88-352, (1964), Pub. L. No. Stat. 255 as the director’s actions constituted discrimi- amended, VII, seq. (b) (c) pay, U.S.C. 2000e-2 et §§ within Title back recon- nation personnel of her to reflect the struction promotions records have received but for the she would accompanying 23. See note 83 infra and text. acts, (d) compensation allegedly unlawful expenses ministratively, prosecuting incurred in the case ad- provides: In relevant the Act (e) expenses medical incurred employment prac- It be an shall unlawful anxiety of nervous caused for treatment employer— tice for of, complained (f) costs and at- incidents torney’s (1) discharge to fail or to refuse hire or to J.App.31-32. fees. individual, any or otherwise to discriminate Appellant sought any against respect leave to amend the com- individual with to his allegations plaint terms, conditions, to of retaliation compensation, include privileg- or filing after the of the initial the director dis- employment, es of because of such individu- complaint. crimination The record does not race, color, sex, religion, al’s or national ori- any ruling request. on that See note 90 reflect gin; or held, however, appellant infra. The court limit, (2) segregate, classify to his em- trial, a de was not entitled to novo Barnes v. ployees applicants any Train, supra opinion note memorandum way deprive deprive which would or tend to (Aug. 1974), J.App. ruling 3-4 independently challenged any employment opportunities individual of appeal. on this It is adversely or otherwise affect his as an status appellant’s complaint now clear that if stated a race, employee, because of such individual’s granted pur- claim which relief could be color, religion, sex, origin. or national VII, denying to Title court suant erred in de VII, Rights Civil amended, Act of tit. as § Roudebush, Chandler v. novo consideration. 2000e-2(a) (1970 Supp. 42 U.S.C. & 48 L.Ed.2d 416 II judgment (1976), decided after rendition of appealed also infra. from. See note 90 emphasized The Committee endeavors define that women’s no assistance to lends employment rights “judicial are not prohibition precisely, more diver- of this scope tissements,” “[djiscrimination and that were It any needed. elucidation if indeed against women is no less serious than other pro- to other an addition was offered prohibited employment practices forms of at- by opponents in last-minute scriptions is to degree be accorded same which became the to block the bill tempt given any type social concern of unlaw- bill, Act,25 amendment ful discrimination.”31 report of sex-discrimination, quickly then barring on Labor Senate Committee and Public Thus, eight-year period for an passed.26 a similar Welfare reveals commitment enactment, original there was following its eradication of sex discrimination:32 history congres- to refine legislative While have looked at the entire some language. sional rights issue of women’s as a frivolous however, When, Act was amend- the 1964 divertissement, this Committee believes Opportunity Equal Employment by the ed that discrimination women is no 1972,27 was considerable discus- there Act of prohibited less than serious other forms surprisingly, it then topic. Not on the sion discrimination, Congress deeply evident that became degree accorded the same giv- concern about concerned similarly en to any type of unlawful con- intended combat gender, founded point, duct. As a further recent studies type forbid- vigorously as it as there is shown that a close correla-

Notes

notes See v. (1971). L.Ed.2d 543 v. See also Gillin Federal Co., 15, U.S.App.D.C. Register 157 481 Cash Bd., Co., 97, Paper (2d 1973). 479 F.2d 102 Cir. 1115, (1973); Willing 257 F.2d 27 A.L.R.Fed. Co., Publishing F.2d ham Macon Tel. 507 v. See, Co., g., Griggs supra e. Duke Power v. 1084, (5th 1 en A.L.R.Fed. Cir. banc 26 34, 433-434, note 855, at 91 S.Ct. at 854- contrast, By at bar a treat the case harbors 165; City States L.Ed.2d at United allegedly predicated upon an ment differential 10, 47, Chicago, supra U.S. at note 91 S.Ct. gender— personal immutable characteristic — 20, 12-13; Tallman, at Udall v. L.Ed.2d at subjected appellant to a marked disad supra note at 380 U.S. at 85 S.Ct. employed by vantage comparison men L.Ed.2d at Elec. 619. Cf. General Co. v. Gil- Agency. bert, 125, 140-145, 97 S.Ct. 410- U.S. (1976). 50 L.Ed.2d 357-360 Cong.Rec. 58. 110 1604.4(a) (1975). C.F.R. § Publishing Willingham Tel. v. Macon at 1089. 507 F.2d accompanying 66. See notes 49 & 55 analogy text. An Havens, is afforded Slack at 60. 400 (S.D.Cal.1973), 7 F.E.P.Cas. 615-616. L.Ed.2d at aff'd, 1975), 522 F.2d 1091 where four discharged black women were result the case for determi- 61. The remanded Court heavy cleaning, perform their assert refusal to imposed the condition nation as to whether required edly duties and of their occupational qualification was reasonably fide “a bona simply them of their race. The one necessary operation to the normal department, assigned to their white woman particular enterprise.” Id. of that business four, seniority who had than three of less 91 S.Ct. at day, to work was transferred elsewhere supra. note 51

notes us, subjected in the case before a woman is account, supra at 68. See text note 49. On this superior condition who Gilbert, believe that General Elec. Co. v. we completely all leaves men from that condi- free Aiello, Geduldig note tion, parity cannot said that there is (1974), L.Ed.2d treatment as found General Electric Electric, distinguishable. General Geduldig, sex-predicated or that there is anot preg- exclusion of benefits for concluded that Phillips. found discrimination as nancy employer’s compre- from an otherwise supra at 69. See text disability plan did not work a discrimi- hensive nation attributable to sex. Court relied heavily upon holding Geduldig its earlier text notes 54-56.

Case Details

Case Name: Paulette L. Barnes v. Douglas M. Costle, Administrator of the Environmental Protection Agency

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 27, 1977

Citation: 561 F.2d 983

Docket Number: 74-2026

Court Abbreviation: D.C. Cir.