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phenomenon of "workplace bullying" and the need for status-blind hostile work environment protection, The

Georgetown Law Journal, Mar 2000 by Yamada, David C

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The most troubling scenario occurs when bullying includes both sexual and nonsexual behavior. When courts consider sexual conduct under hostile work environment analysis and nonsexual (yet discriminatory) conduct under a separate disparate treatment analysis, the alleged misconduct will never be considered in its totality. Bullying, as the discussion in Part I makes clear, is best understood only when viewed in its totality. The unfortunate individual who is the target of both sexual and nonsexual bullying will not emotionally compartmentalize what has happened to her into separate harms; disaggregation, however, will force that artificial distinction on her and, in the process; diminish the seriousness of what happened to her in the eyes of the law.

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2. Employer Liability

The evolution of the prima facie hostile work environment claim informs our understanding of the extent to which the Title VII offers protections against workplace bullying grounded in sexually harassing conduct. In addition, one must examine how Title VII treats employer liability to fully understand how employers try to prevent and respond to abusive work situations. In two companion cases decided in 1998, Burlington Industries, Inc. v. Ellerth261 and Faragher v. Boca Raton,262 the Supreme Court clarified the standard for holding an employer liable when a supervisor creates an actionable hostile work environment for an employee in violation of Title VII.

In both cases, the Court held that an "employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee."263 The Court then promulgated a two-element affirmative defense available to employers in instances where no tangible employment action264 was taken: First, the employer must establish that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior."265 Second, the employer must establish that the "plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."266

The Court looked in large part to common-law agency principles in developing this analytical framework. Although traditional master-servant principles impose liability upon the master for the tortious acts of servants "'committed while acting in the scope of employment,'"267 the "general rule is that sexual harassment by a supervisor is not conduct within the scope of employment."268 However, even where conduct is outside the scope of employment, employer liability may be imposed where the employee "'was aided in accomplishing the tort by the existence of the agency relation.'"269 Known as the "aided in the agency relation standard," this provision supports the finding that any "tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer."270

The Court recognized that the application of the aided in the agency relation standard is less clear when the hostile work environment "does not culminate in a tangible employment action."271 It noted, however, that considerations of public policy underlying Title VII also should come into play. These include the importance of encouraging employers to design "antiharassment policies and effective grievance mechanisms," as well as placing limits on employer liability to "encourage employees to report harassing conduct before it becomes severe or pervasive."272 Imposing vicarious liability, even in the absence of a tangible employment action, and the above-stated affirmative defense hold promise of advancing the court's policy goals.

phenomenon of "workplace bullying" and the need for status-blind hostile work environment protection, The

Georgetown Law Journal, Mar 2000 by Yamada, David C

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