explaining that in the Title VII context that “there may be cases in which a supervisor makes sexual overtures of both sexes or where the conduct complained of is equally offensive to male and female workers. In such cases, sexual harassment would not be based on sex because men and women are accorded like treatment ... .[and] the plaintiff would have no remedy under Title VII”
How later courts described this case
- explaining that in the Title VII context that “there may be cases in which a supervisor makes sexual overtures of both sexes or where the conduct complained of is equally offensive to male and female workers. In such cases, sexual harassment would not be based on sex because men and women are accorded like treatment ... .[and] the plaintiff would have no remedy under Title VII”
- holding that where a supervisor makes sexual overtures to employees of both genders, or where the conduct is equally offensive to male and female workers, the conduct may be actionable under state law, but it is not actionable as harassment under Title VII because men and women are accorded like treatment
- explaining that if a party's trial testimony contradicts his prior deposition testimony, and the deposition testimony is "read ... to" and "acknowledged" by the party at trial, the fact-finder may then consider and rely on the deposition testimony "as substantive evidence"
- holding that a supervisor's denial to a police dispatcher of the opportunity to attend the local police academy because of the dispatcher's rejection of the supervisor's sexual advances was sufficient to constitute quid pro quo sexual harassment
Written by the judges who cited it.
The opinion
CLARK, Circuit Judge,
concurring in part and dissenting in part:
Although I agree with most of the majority opinion, I dissent from several of its conclusions. First, I take issue with the majority’s statement that “[wjhere, as here, the plaintiff seeks to hold the employer responsible for the hostile environment created by the plaintiff’s supervisor or coworker, she must show that the employer knew or should have known of the harassment in question and failed to take prompt remedial action.” Majority opinion at 905 (footnote omitted). I agree with this statement insofar as it applies to coworkers, but I believe that the majority is incorrect to apply the “know or should have known” requirement to situations where the hostile environment is created by the plaintiff’s supervisor.
“Sexual harassment” is defined by 29 C.F.R. § 1604.11 (a)(3) to include “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature ... when .. . such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” (Emphasis added.) Subsection (c) of 29 C.F.R. § 1604.11 provides that an employer “is responsible for its acts and those of its . .. supervisory employees with respect to sexual harassment ... regardless of whether the employer knew or should have known of their occurrence.” Subsection (d) provides, however, that an employer is not liable for acts of sexual harassment by coworkers unless the employer knew or should have known of the conduct.
These regulations made a clear distinction between a hostile environment created by a supervisor and one created by a coworker, and provide that the employer is liable in the former situation regardless of whether it “knew or should have known” of the unlawful conduct. I would hold that a woman in the workplace should be able to obtain relief against an employer when her supervisor creates a hostile working environment without having to prove that the employer knew about it. An employer delegates certain responsibilities to its supervisors, one of which certainly is to create a pleasant working environment. If the supervisor uses his position to create a hostile, sexually harassing work environment, the employer should be liable.
In support of its statement, the majority cites Bundy v. Jackson, 641 F.2d 934 , 943 & n.8 (D.C.Cir.1981), and Vinson v. Taylor, 23 Fair Empl.Prac.Cas. (BNA) 37 , 41-42 (D.D.C.1980). Vinson , however, did not involve a hostile environment created by the plaintiff’s supervisor. Moreover, in Bundy the employer “had full notice of harassment committed by agency supervisors and did virtually nothing to stop or even investigate the practice.” 641 F.2d at 943 . Thus, the Bundy court was not faced with the question whether an employer is liable for its supervisor’s creation of a hostile environment when the employer is unaware of the supervisor’s actions; Bundy merely held the employer liable where it was aware of the supervisor’s actions. Furthermore, the Bundy opinion quotes with approval the regulations, 29 C.F.R. § 1604.11 , that specifically state that the “employer is responsible for discriminatory acts of its ... supervisory employees with respect to sexual harassment ... regardless of whether the employer ... knew or even should have known of the acts.... ” 641 F.2d at 947 . In view of these facts, I believe that the majority has misread Bundy and Vinson .
I also differ with the statement by the majority that “[t]he capacity of any person to create a hostile or offensive environment is not necessarily enhanced or diminished by the degree of authority which the employer confers upon that individual.” Majority opinion at 910. In my opinion, that is not a correct assumption. Clearly, a supervisor by virtue of his position is enhanced in his ability to create an offensive environment *914 when compared to the janitor, for example. When a supervisor creates such an environment, women employees are not apt to complain for fear of retaliation.
In summary, I disagree with the “knew or should have known” restriction placed on the liability of an employer for a hostile environment created by a supervisor. I note that the majority’s holding on this issue is unnecessary to the decision in this case because here the employer had actual notice of the supervisor’s unlawful acts. In such situations, the employer is always liable. I would prefer that we not address this issue until faced with a case where we must decide it. Since the majority has chosen to address the issue in this case, I must dissent from the majority’s conclusion. I would hold that when a supervisory employee creates a hostile or offensive work environment through sexual harassment, the employer is liable regardless of whether it knew or should have known of the supervisor’s actions. To this extent, I dissent.