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Annette Idalski, National Chair, Labor & Employment
Peter Hall, Shareholder
Diana Perez Gomez, Shareholder
Larry Carbo, Shareholder
Kellen Scott, Senior Counsel
Julie Offerman, Senior Associate
Brian Smith, Associate
Kyle Winnick, Associate
Chamberlain Hrdlicka Blawgs
The #MeToo movement has rightfully prompted employers to reevaluate their policies on sexual harassment: An appropriate and effective response to sexual harassment allegations can minimize the risk of a future lawsuit, promote a better work environment, and provide the basis for avoidance of liability or limiting damages if a lawsuit does occur. But as employers incorporate lessons from the #MeToo movement into their employment policies and protocols, they should be cognizant that they may not rely on sex stereotypes to resolve allegations of sexual harassment, thereby unlawfully discriminating against the accused employee in the process.
Illustrative is Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009), where a male employee (Sassaman) was pressured to resign because of allegations of sexual harassment lodged against him by a female co-worker. He claimed the harassment charge against him was inadequately investigated, and that his supervisor told him, “[Y]ou probably did what she said you did because you’re male and nobody would believe you anyway.” Relying on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court case holding that employers unlawfully discriminate when they make adverse employment decisions on the basis of invidious sex stereotypes, the Second Circuit found there was a question of fact whether Sassaman’s employer relied on a sex stereotype—the propensity of men, as a group, to sexually harass women—when forcing him to resign.
Thus, employers must exercise caution when investigating sexual harassment allegations, lest they unwittingly set the stage for a lawsuit by the accused. This article provides guidance to employers to ensure that does not happen.
II. Overview of Title VII
1. The Law of Sexual Harassment
Title VII of the Civil Rights Act of 1964 forbids employment actions taken on the basis of sex that “discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment[.]” Two forms of sexual harassment are actionable under Title VII: (1) quid pro quo and (2) hostile work environment. Quid pro quo harassment occurs when tangible job benefits (e.g., promotions) are conditioned on an employee’s submission to conduct of a sexual nature or when adverse job consequences result from an employee’s refusal to submit to such conduct. A hostile work environment results when the sexual harassment is “so ‘severe or pervasive’ as to ‘alter the conditions of [the victim’s] employment and create an abusive working environment.’” This standard is both objective and subjective: The work environment must be one that “a reasonable person” would find hostile, considering all the circumstances, and one that the victim subjectively perceived as hostile.
However, even when plaintiffs prove that workplace sexual harassment occurred, there must still be a basis for employer liability. There are three general standards to governing employer liability, and determining which one applies turns upon who committed the harassment, whether the harassment resulted in a tangible employment action, and the employer’s response to the harassment. First, employers are strictly liable for harassment inflicted by supervisors that “culminates in a tangible employment action,” such as termination.
Second, when the supervisor harassment takes place in the absence of a tangible employment action, employers may assert an affirmative defense comprising two necessary elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the plaintiff unreasonably failed to avail herself of any employer-provided remedial apparatus. Employers have the burden to prove each of these necessary elements by a preponderance of the evidence.
Third, employers are directly liable when a co-worker harasses the plaintiff-employee if the employer was negligent with respect to the offensive behavior. Employers are not negligent when they take “prompt and appropriate corrective action reasonable likely to prevent the harassment from recurring.” Thus, in the absence of harassment by a supervisor culminating in a tangible employment action, employers can shield themselves from liability (under both a negligence and a vicarious liability standard) by having appropriate policies in place and taking appropriate remedial action when they learn of harassment.
2. The Law of Invidious Sex Stereotypes
But as the above discussion of Sassaman v. Gamache illustrates, appropriate remedial action does not include unlawfully discriminating against the accused harasser through reliance on invidious stereotypes. The foundational case in this area of employment-discrimination jurisprudence is Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that employers who make adverse employment decisions on the basis of invidious sex stereotypes, such as the belief that women should be demure in the workplace, violate Title VII. In Price Waterhouse, a female senior manager was denied partnership after being told she was too “macho” and in need of “a course at charm school[.]” She was instructed that to become a partner she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” In finding actionable discrimination, the Court reasoned that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group[.]”
The lower courts have extended Price Waterhouse beyond situations where employers take adverse action against employees for failing to conform with a gender stereotype to situations where employers assume that employees will conform with a gender stereotype. Thus, sex-based discrimination has been found where employers assume female employees are too delicate to interact with boorish male clients or work as hard after having a child. The extension of this line of cases to situations where male employees are presumed guilty of harassment after being viewed through an “all men are pigs” lens is therefore not surprising. As the Sassaman Court observed: “We appreciate that employers who fail to address claims of sexual harassment expose themselves to civil liability. However, fear of a lawsuit does not justify an employer’s reliance on sex stereotypes to resolve allegations of sexual harassment, discriminating against the accused employee in the process.”
III. Proper Employer Response to Sexual Harassment Allegations
The lesson of Sassaman and the extension of Price Waterhouse is that sexual harassment allegations should be taken seriously and investigated, but the accused should not be presumed guilty. In determining whether a complaint is substantiated or unsubstantiated, employers should make conclusions based on the evidence (or lack thereof) obtained during an investigation. And the conduct of the investigation should have the usual hallmarks of due process. It should be prompt, thorough, confidential, and impartial. The investigator(s) should marshal as much relevant evidence as possible, interview witnesses who likely have relevant knowledge, and make credibility determinations. Conclusions should be documented and based on the totality of the circumstances, as adduced from the facts gathered. And, of course, any remedial action must effectively stop the offending conduct.
Obviously, any action taken will depend on a host of considerations, such as the nature of the conduct and the evidence gathered. This is why the prudent employer adopts and follows a detailed protocol. Indeed, deviation from established procedures may evidence disparate treatment. Therefore, it is essential that employers investigating sexual harassment claims do so fully, fairly, and neutrally. And, of course, assumptions have no place in an investigation.
 Price Waterhouse also held that, under 42 U.S.C. § 2000e–2(a)(1), an employer could “avoid a finding of liability . . . by proving that it would have made the same decision even if it had not allowed gender to play such a role.” 490 U.S. at 244; see id. at 261 (White, J., concurring in judgment); id. at 261 (O’Connor, J., concurring in judgment). The Court was divided, however, over when the burden of proof shifts to an employer to prove this affirmative defense. In 1991, Congress responded to Price Waterhouse by amending Title VII to clarify when the burden of proof shifts to the employer and the scope of the affirmative defense. 42 U.S.C. § 2000e–2(m); Desert Palace, Inc. v. Costa, 539 U.S. 90, 93–95 (2003). Congress did not amend the Court’s holding regarding sex stereotypes as admissible evidence of unlawful discrimination.
 42 U.S.C. § 2000e-2(a)(1).
 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65–66 (1986); 29 C.F.R. § 1604.11(a); see Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998).
 29 C.F.R. § 1604.11(a)(1), (a)(2); see Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994).
 Faragher v. Boca Raton, 524 U.S. 775, 786 (1998) (quoting Meritor Savings Bank, FSB, 477 U.S. at 67); see Pennsylvania State Police v. Suders, 542 U.S. 129, 133 (2004); 29 C.F.R. § 1604.11(a)(3); see also Clark County School Dist. v. Breeden, 532 U.S. 268, 270 (2001).
 Harris v. Forklift Services, 510 U.S. 17, 21–22 (1993); see Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81–82 (1998).
 See Fairbrother v. Morrison, 412 F.3d 30, 48–49 (2d Cir. 2005).
 Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 808; see Suders, 542 U.S. at 143–146. The Supreme Court has defined “supervisor” to mean someone empowered by the employer to take tangible employment actions (e.g., termination, demotion, reassignment) against the victim. Vance v. Ball State Univ., 570 U.S. 421, 424, 428–29 (2013).
 Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 765; see also Suders, 542 U.S. at 137–38.
 Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998).
 Williams v. Waste Management of Illinois, 361 F.3d 1021, 1029 (7th Cir. 2004).
 490 U.S. at 235 (plurality); id. at 259 (White, J., concurring); id. at 272–73 (O’Connor, J., concurring).
 490 U.S. at 235.
 Id. at 251.
 Lust v. Sealy, Inc., 383 F.3d 580, 586 (7th Cir. 2004) (Posner, J.).
 Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 120 (2d Cir. 2004); Santiago–Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 57 (1st Cir. 2000).
 566 F.3d at 313.
 See, e.g., Moore v. Metro. Transp. Auth., 999 F. Supp. 2d 482, 498 (S.D.N.Y. 2013).