stating that, in a case involving workplace hostility after the end of a consensual relationship between coworkers, “[i]t is not an employer’s responsibility to mediate relationship disputes between employees unless and until there is actual sexual harassment,” and that sexual harassment should not include “simple hostility between coworkers of the opposite sex, without sexual overtones.”
How later courts described this case
- stating that, in a case involving workplace hostility after the end of a consensual relationship between coworkers, “[i]t is not an employer’s responsibility to mediate relationship disputes between employees unless and until there is actual sexual harassment,” and that sexual harassment should not include “simple hostility between coworkers of the opposite sex, without sexual overtones.”
- concluding that case was submissible where employer “failed to take more severe disciplinary measures against [harasser] once it learned that [the] harassing behavior had not stopped”
- holding that an oral warning may be sufficient “where the harassing conduct is not extremely serious”
- holding that more severe disciplinary mechanisms are needed when harassment continues
Written by the judges who cited it.
The opinion
KEEP, Chief District Judge,
concurring in judgment.
I concur in the result reached by Judge Hall, that the means undertaken by the Veterans Administration in this case were insufficient to remedy the incidents of sexual harassment found by the trial court. Unlike Judge Wiggins, I do not believe that the question of whether Mr. Cortez’s behavior constituted a prima facie case of sexual harassment is properly before the court, as this issue was not raised by the Veteran’s Administration on appeal. However, I write separately to address what I perceive to be an inherent ambiguity in Judge Hall’s discussion of discipline, and to emphasize what I believe to be Title VII’s remedial, rather than punitive goals.
Like Judge Wiggins, I find problematic Judge Hall’s conclusions that “at least some form of discipline is necessary to satisfy the requirements of Title VII.” The word “discipline,” which Judge Hall does not define, has both a punitive and corrective aspect. 1 It is unclear from the text of her opinion to which meaning Judge Hall’s repeated uses of “discipline” refer: she distinguishes in Section III actions that are “disciplinary” from those that are merely “corrective;” however, she subsequently cites in support of her discussion of retroactivity cases from other circuits in which an employee warning was held sufficient to discharge an employer’s duty under Title VII. See Swentek v. USAIR, Inc., 830 F.2d 552 (4th Cir.1987); Barrett v. Omaha Nat. Bank, 726 F.2d 424, 427 (8th Cir.1984). It is therefore unclear whether Judge Hall’s opinion would require employers to punish employees for incidents of harassment in the first instance. To the extent that Judge Hall’s opinion does create an absolute rule that a harasser must be punished if the dictates of Title VII are to be followed, I believe that it go.es significantly beyond the dictates of Ellison v. Brady, 924 F.2d 872 (9th Cir.1991), and is inconsistent with the language and purpose of Title VII. 2
*782 The Supreme Court has emphasized that Title VII is a “remedial” statute, designed to eliminate the effects of unlawful discrimination in the workplace. See Local 93, International Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501 , 106 S.Ct. 3063 , 92 L.Ed.2d 405 (1986); Transworld Airlines v. Thurston, 469 U.S. 111 , 105 S.Ct. 613 , 83 L.Ed.2d 523 (1985); Firefighters Local Union v. Stotts, 467 U.S. 561 , 104 S.Ct. 2576 , 81 L.Ed.2d 483 (1984). Precisely because a court may impose on an employer only such measures that will remedy discrimination and make a victim whole, courts have been willing to impose liability even in the absence of willfulness or “intentional” violation of an employee’s rights. Id.
Ellison crafted an approach to sexual harassment that I find consistent with this emphasis on remedy. Ellison noted that EEOC standards explain that an employer’s action is appropriate where it “fully remedies the conduct without adversely affecting the terms or conditions of the charging party’s employment in some manner (for example, by requiring the charging party to work ... in a less desirable location).” Id. at 881 , quoting EEOC Compliance Manual (CCH) § 615.4(a)(9)(iii), II 3103, at 3213 (1988). This court concluded, drawing from this standard and those of other circuit courts, that remedies should be “reasonably calculated to end the harassment” and should be “assessed proportionately to the seriousness of the offense.” Ultimately, this court explained in Ellison ,
the reasonableness of an employer’s remedy will depend on its ability to stop harassment by the person who engaged in the harassment. In evaluating the adequacy of the remedy, the court may also take into account the remedy’s ability to persuade potential harassers to refrain from unlawful conduct. Indeed, meting out punishments that do not take into account the need to maintain a harassment-free working environment may subject the employer to suit by the EEOC.
Ellison, 924 F.2d at 882 .
Other circuits have articulated a similar emphasis on remedy in explaining the duty of employers to end harassment by employees. A recent case in the Fifth Circuit defined this duty in the following language:
[W]e are guided by Bundy v. Jackson, 641 F.2d 934, 947 (D.C.Cir.1981), where the court held that ‘[an employer] should promptly take all necessary steps to investigate and correct any harassment, including warnings and appropriate discipline directed at the offending party, and should generally develop other means of preventing harassment within the agency.’ Consistent with Bundy , we have held that an employer must take prompt and appropriate remedial action, ‘reasonably calculated’ to end the harassment. What is appropriate remedial action will necessarily depend on the particular facts of the case — the severity and persistence of the harassment, and the effectiveness of any initial remedial steps, (cites) These cases indicate that not every response by an employer will be sufficient to discharge its legal duty. Rather, the employer may be liable despite having taken remedial steps if the plaintiff can establish that the employer’s response was not “reasonably calculated” to halt the harassment.
Wattman v. Int’l Paper Co., 875 F.2d 468, 479 (5th Cir.1989) (emphasis added).
*783 While I agree with Judge Hall that discipline and/or punishment may be appropriate under the particular facts of a case, I am uncomfortable with a holding that requires discipline and punishment regardless of the circumstances of the offense or the expected effect on the offender’s behavior. I read Title VII and the regulations and cases decided thereunder to require appropriate corrective action — no more, no less. Even a harshly punitive response by an employer may be insufficient if it is not “reasonably calculated to end the harassment,” see Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983); conversely, a “mere request to stop” unlawful conduct may be sufficient to alter the unlawful behavior of some harassers, and therefore sufficient to discharge the employer’s duty under Title VII. Although I agree with much of Judge Hall’s analysis, I cannot agree, as she suggests, that disciplinary measures are always more likely to decrease the repeated harassment than are other forms of corrective action. I therefore cannot join in a holding that necessarily requires a disciplinary response to incidents of sexual harassment.
I suggest that a more fruitful line of analysis, which I believe Judge Hall does adopt at some points in her opinion, would focus on an employer’s obligation to respond to harassment in the manner most likely to put a stop to the unlawful behavior. This response will, I believe, frequently require a disciplinary or punitive component, and may require immediate termination in the most egregious cases. It also requires, as I believe Judge Hall suggests, that the response by an employer increase in severity if initial attempts do not eliminate the abuse. Finally, I join Judge Hall in emphasizing that a single, isolated response, whether in the form of a rebuke, counseling or demotion, is insufficient to immunize an employer from liability if the response does not put an end to the abusive behavior. The benchmark of an adequate employer response, however, must be its effectiveness in preventing and eliminating sexual harassment in the workplace; any other standard, I believe, does not comport with the Congressional mandate expressed in Title VII.
While the difference between my interpretation of the corrective burden placed on employers by Title VII and that expressed by Judge Hall ultimately may be merely semantic, I find her repeated references to “discipline” extremely ambiguous, suggesting a punitive standard inappropriate in this context. My attempt is not to soften the effects of Judge Hall’s opinion, but rather to underscore the corrective goal that must focus any Title VII remedy. I would therefore clearly hold that the appropriateness of an employer’s response to harassment by an employee will be assessed in light of the seriousness of the behavior and the effectiveness of previously-tried approaches, rather than against an absolute requirement of discipline.
For the reasons expressed, I respectfully concur in the judgment.
. Webster's Third New International Dictionary 644 (1976) alternatively defines the noun form of the word "discipline” as "punishment: chastisement self-inflicted or imposed as a penalty or penance" and as "control gained by enforcing obedience or order." The verb form of "discipline” is defined "to inflict suffering on or to penalize for the sake of discipline, regularity, order, or rule,” or "to train by instruction or exercise." Id. at 645.
. Moreover, to the extent that the opinion does create a standard requiring punishment, I question the conclusion reached by Judge Hall in Part III, that Ellison may be retroactively applied under the standard set out in Chevron Oil. I agree that employers have long been on notice, under the EEOC Compliance Guidelines, Hacienda Hotel, and case law of the Fourth and Eighth Circuits, that they are required under Title VII to intervene promptly and effectively to put an end to workplace sexual harassment. I do not believe that this court’s discussion in Ellison of what remedial actions by employers shield them from liability under Title VII was intended to announce a new rule of law. While this court noted that “We have not addressed what remedial actions taken by employers can shield them from liability for sexual harassment by co-workers," ( 924 F.2d at 881 ), it noted that Hacienda Hotel had been clear that employers *782 are liable for failing to remedy or prevent a hostile or offensive work environment of which management level employees knew. The Court further noted existing EEOC Guidelines addressing the subject, as well as cases from the Fourth and Eighth Circuits that required significant, prompt intervention.
Thus, while there were prior to Ellison no Ninth Circuit cases setting out in detail what is required of an employer, the employer seems to have been fairly on notice long before 1991 that it would be liable for harassment by a co-worker that it failed effectively to remedy. I would therefore agree that it is appropriate for this panel to look to Ellison as an example of this court's prior application of Title VII and the implementing EEOC Guidelines to a particular factual scenario. However, I do not believe that employers were fairly on notice even after Ellison that punitive measures are required to shield them from Title VII liability. To the extent that this is the proposed holding in this case, I cannot agree that this result was "clearly foreshadowed” by earlier case law.