Can Employers Be Held Strictly Liable For Sexual Harassment?

by C. Wayne Davis¹

I.    Introduction

An employee endures years of sexual harassment by her supervisor, yet never reports it or complains to her employer. Several of the instances of alleged harassment even take place outside the workplace or in the employee's own home. The employee ultimately resigns from her job, admits she never complained to her employer about the harassment, and that she refused to file a complaint against the supervisor who harassed her, and then sues her former employer for sexual harassment. Furthermore, after the supervisor is terminated, the employee is offered her job back, but she refuses to return. Can this employer or similar employers be held liable for the acts of one of its supervisors when such activity takes place?

This is the factual scenario that faced the court in Pollock v. Wetterau Food Distribution Group.² This case significantly expands the rights of plaintiffs and broadens the scope of liability for local employers or employers doing business in Missouri. In Pollock, the Missouri Court of Appeals for the Eastern District held that employers are strictly liable for harassment by supervisors under the Missouri Human Rights Act (MHRA), ³ regardless of whether the employee complained about the harassing conduct. This marked the first time that a Missouri court has interpreted the MHRA as providing for strict liability in supervisory sexual harassment claims.

II.    Factual Overview

Plaintiff Laura Pollock began working at one of defendant Wetterau Food Distribution Group's grocery warehouses in 1984. After a few months of employment with Wetterau, the manager of the warehouse, Jack Driskill, began making advances toward Pollock. Driskill's initial overtures included: (1) commenting that Pollock had a "sexy body;" (2) following plaintiff around the warehouse; (3) giving Pollock numerous cards and letters; (4) asking Pollock out; and (5) expressing his feelings for her. ⁴ After Pollock repeatedly told Driskill that she did not want anything to do with him, he began telephoning her at her home, driving by her house, and parking on the street in front of her home. ⁵ Driskill continued this pattern of harassment from the fall of 1984 until February 1986, when Pollock suffered an on-the-job injury that prohibited her from returning to work until July 1988. ⁶

After Pollock returned to work, Driskill intensified his harassment. He began stalking Pollock and acting hostile toward her. He also resumed his telephone and letter barrage. Driskill's harassment culminated one evening when he went to Pollock's home and forced his way into her apartment. Driskill had obviously been drinking and burst into Pollock's home, calling her a "f------ b----" and yelling, "[Y]ou don't know what you want. . . [b]ut I know what I want. . . I want to f--- your brains out." ⁶ After repeated threats to call the police by Pollock, Driskill left.

Finally, after numerous other harassing telephone calls at home, Pollock enlisted the help of a male co-worker, Rick Seaman. ⁸ She confided in him regarding the harassment of Driskill and asked for his advice. She did, however, specifically tell Seaman that she did not want to report Driskill to her employer. ⁹ Seaman called Driskill and told him to leave Pollock alone. This only made Driskill more hostile. At this point, he began to use his authority as manager to isolate Pollock from Seaman and other male employees. He also enlisted other supervisors to help him keep track of Pollock's whereabouts within the warehouse.

Pollock finally attempted to enlist the aid of her chief union shop steward by describing the harassment of Driskill. Her steward simply laughed and told her that she should "give Driskill a chance because he was 'a nice guy.'" ¹⁰ Later, her steward even relayed an invitation by Driskill to meet Pollock after work so he could "take care of her time card." ¹¹ She refused.

Pollock endured this type of harassment until she resigned on June 5, 1989. During her exit interview, she met with her employer's personnel director to discuss the reason for her resignation. When asked why she was resigning, Pollock "initially told [the personnel director] that the warehouse was 'no place for a woman'" and that she would be returning to school. ¹² However, when urged to provide an explanation and specifically asked, "Is it Jack Driskill?", Pollock outlined the continued harassment she endured by Driskill over the years. ¹³ Pollock admitted that this was the first [and only] time she officially reported . . . [the] harassment to [her employer]. ¹⁴

Pollock informed the personnel director that she did not want to file a complaint for fear of retaliation. She also later told an attorney, who served as the employer's director of labor relations, that she did not want any investigation of her allegations for fear of retaliation by Driskill. ¹⁵ During the course of Pollock's discussion with the director of labor relations, she mentioned that Driskill frequently used drugs and alcohol while at work. After some investigation into this matter by the employer, Driskill was terminated for failing to pass a drug test. ¹⁶

After Driskill's termination, Pollock was offered reinstatement to her former position. Actually, Pollock was given two offers: "One was $10,000 provide[d] she signed a release which would sever her employment relation with [defendant], or number two, an unconditional offer of reinstatement without loss of seniority." ¹⁷ Pollock rejected both offers. But, most importantly, Pollock refused to return to work, explaining that she still feared retaliation or continued harassment by Driskill's friends who still worked at the warehouse. ¹⁸

III.    Procedural History and Overview

On August 17, 1990, Pollock filed suit against Wetterau, claiming that she was subjected to a hostile work environment that ultimately forced her to resign from her position with defendant. ¹⁹ After a bench trial, the trial court held that, even though Pollock had not reported the harassment to her employer until she resigned, Wetterau would be liable either because "the MHRA [Missouri Human Rights Act] imposes a system of strict liability or because the harassment was pervasive enough that Defendant knew or should have known of the harassment." ²⁰ The trial court also found that Wetterau's sexual harassment policy was insufficient in that it was not adequately disseminated; it failed to mention a prohibition against retaliation; and did not assure employees that it would be enforced. ²¹ The trial court awarded Pollock back pay from the date of her resignation until the date she rejected Wetterau's offer of reinstatement. It refused to award punitive damages or prejudgment interest on the award. Both parties appealed to the Missouri Court of Appeals, Eastern District.

The procedural history and sequence of events leading up to the final decision in this case have been both unusual and intriguing. In a bold and unexpected move, the Missouri Court of Appeals originally issued its opinion on August 17, 1999, holding that employers are strictly liable for supervisory harassment under the MHRA. ²²

On September 17, 1999, the Missouri Commission on Human Rights (MCHR) filed an emergency amendment to its regulation, ²³ which proposed to amend the regulation by deleting the strict liability language. ²⁴ This change was an attempt to conform Missouri law to federal law and the "Equal Employment Opportunity Commission's (EEOC) Guidelines for Sexual Harassment." ²⁵ The emergency statement issued by the MCHR stated:

This emergency amendment is necessary to provide consistency with federal case law and EEOC Guidelines. Failure to implement this Emergency Amendment would require employers to be strictly liable for supervisor sexual harassment regardless of any effort to prevent and eliminate that harassment. The current regulation is outdated and at least twenty years old. The current regulation which was upheld by a Missouri court, would create a disincentive for preventing sexual harassment. The emergency regulation would allow employers to continue following the federal standard that encourages employers to prevent sexual harassment. For these reasons, the commission finds there is an immediate danger to public health, safety or welfare. The scope of this rule is limited to the circumstance creating the emergency and complies with the protections extended in the Missouri and United States Constitutions. ²⁶

After appearances and hearings before the Joint Committee on Administrative Rules, the MCHR announced the adoption of an emergency amendment. This amendment altered subsection (B) of the rule governing Employment Practices Related to Men and Women by adding the following language in bold text. It also withdrew the italicized portion (or strict liability language) of subsection (C).

(B) In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made by applying relevant federal case law and Equal Employment Opportunity Commission Guidelines and from the facts, on a case-by-case basis.

(C) [Applying general principles of Chapter 213, RSMO, an employer, employment agency, joint apprenticeship committee or labor organization (hereinafter collectively referred to as employer) is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence.] The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity. ²⁷

The Missouri Court of Appeals, Eastern District, subsequently rendered a superseding opinion on December 14, 1999. There, the court held that, despite the recent actions of the MCHR, employers could be held strictly liable for sexual harassment. The court also held that Pollock had adequately established a continuing violation of harassment throughout her employment with Wetterau and that incidents of harassment occurring outside the workplace could be considered in the finding of liability on Pollock's sexual harassment claim. ²⁸

Then, in yet another unanticipated turn, on December 15, 1999, one day after the new Pollock decision, the MCHR terminated its emergency amendment effective December 29, 1999. ²⁹ Then on March 21, 2000, both parties' applications to transfer the case to the Supreme Court of Missouri were denied. ³⁰ Nevertheless, on March 30, 2000, the MCHR held a public hearing to hear testimony on this issue and to determine whether further action by the commission is required or if legislative action is necessary.

Needless to say, the issues presented in this case have sparked some controversy, raised questions and possibly awareness, increased dialogue amongst members of the legal profession, and should force employment practitioners to reexamine how this area of law is analyzed. However, before the implications or ramifications of such a decision are considered, it is necessary to examine the case itself in more detail.

IV.    Case Analysis

1. Constructive Discharge

   In rendering its decision in Pollock, the Missouri Court of Appeals first considered the issue of constructive discharge. Wetterau argued that Pollock was not "constructively discharged because she jumped to the conclusion that Defendant would not take action to stop Driskill's harassment and because she quit without giving Defendant an opportunity to remedy the situation." ³¹ The court reasoned that an adequate analysis of constructive discharge hinges on whether "a reasonable person would find his [or her] working conditions intolerable." ³² The court recognized that an employee who quits without giving an employer a reasonable chance to work out a problem has not been constructively discharged, but held that this cannot be interpreted to mean "that a complaint of harassment is a necessary precondition to a claim of constructive discharge or, conversely, that the plaintiff's failure to complain is an absolute bar to recovery for constructive discharge." ³³ In so holding, the court emphasized that, while "an employee's failure to complain may well be fatal to a claim of constructive discharge in some, but not all, cases," courts should focus on the "totality of the circumstances" in determining whether plaintiff's working conditions were intolerable. ³⁴

   In considering the totality of the circumstances, the court reasoned that Pollock had suffered daily sexual harassment at home and work and had nowhere to turn for help with the situation. The court also placed significant emphasis on Wetterau's inadequate sexual harassment policy. It noted that some of Pollock's supervisors or managers went along with Driskill's harassment; that her union steward trivialized Pollock's report of harassment; and that Wetterau failed to implement an adequate harassment policy by (1) failing to make employees aware that it had instituted internal procedures to remedy such harassment; and (2) by failing to demonstrate that such policy would be strictly enforced. ³⁵ The court accordingly determined that:

   All of these circumstances, viewed in their totality, support the trial court's finding that Plaintiff was faced with intolerable working conditions and that she acted reasonably in resigning, despite her failure to complain. Thus, we cannot say the trial court erred in imposing liability on Plaintiff's constructive discharge claim. ³⁶

2. Strict Liability

[a]n employer . . . is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. ³⁷

The court rejected defendant Wetterau's argument that the court should follow the reasoning of Williamson v. Arvin Industries, Inc. ³⁸ In Williamson, the United States District Court for the Eastern District of Missouri declined to apply the strict liability scheme of the MHRA on the state law claim of supervisory sexual harassment, in the absence of state law applying the regulation and also because it held that such state regulations are not binding on courts. ³⁹ The Pollock court held, however, that "state regulations, promulgated pursuant to properly delegated authority, have the force and effect of law and are therefore binding on courts." ⁴⁰ In so holding, the court recognized that the United States Supreme Court refused to give effect to 29 C.F.R. § 1604.11(c), a virtually identical EEOC regulation, by holding that the regulation was interpretive rather than legislative. ⁴¹ The court reasoned that 42 U.S.C. § 2000e-12(a) gave the EEOC the authority to issue only procedural rules, whereas the Missouri legislature granted the MCHR the broad authority to "adopt, promulgate, amend, and rescind suitable rules and regulations to carry out the provisions of this chapter and the policies and practices of the commission in connection therewith." ⁴² The court reasoned that, because the provisions of the MHRA were, therefore, binding on courts, "[w]e cannot apply federal standards when the state agency charged with the duty of promulgating regulations to further the goals of the MHRA has adopted a contrary standard." ⁴³ Therefore, the Court held:

The language of the regulation is unambiguous. Employers are liable for any sexual harassment perpetrated by their supervisors regardless of principles of notice or fault. Because this case involved supervisory sexual harassment, the trial court correctly applied 8 C.S.R. 60-3.04(17)(c) and held Defendant strictly liable regardless of whether it knew or should have known of Driskill's harassment. ⁴⁴

The court then acknowledged the recent hearings by the MCHR and the proposed and then adopted emergency amendment rejecting strict liability. The court concluded that MCHR's actions in adopting this emergency rule, in fact, asserted its authority to establish principles of liability that the Missouri legislature was free to invalidate, ⁴⁵ yet had chosen not to do so. ⁴⁶ The court also rejected defendant Wetterau's proposal of retroactive application of the MCHR new emergency rule by stating that the "agency cannot promulgate in 1999, substantive regulations to govern conduct that occurred in 1989." ⁴⁷

Next, the court addressed the possibility of affirmative defenses under this strict liability framework or Missouri statute as originally written. The court rejected the existence of any affirmative defenses in the context of supervisory sexual harassment, even though the MHRA is silent regarding such defenses. Relying on basic principles of construction, it held that it must give effect to the statute as written and could not add provisions that did not appear either explicitly or by implication. ⁴⁸ It stated that the MCHR was "perfectly capable" of establishing such affirmative defenses and had, in fact, set forth affirmative defenses in other sections of the act. Therefore, the court reasoned that "[a]ny judicially created affirmative defenses would usurp the legislature's grant of authority to the MCHR to carry out the policies of the MHRA." ⁴⁹ In so holding, the court further distinguished the protections of the MHRA from those set forth under Title VII by eliminating viable affirmative defenses that exist under the Title VII framework.

V.    Practical Application

What does all this mean and what are some of the practical implications of such a decision? This is a must-read case for all attorneys practicing in the area of employment law. Now that federal courts have received guidance from a Missouri court, it is likely that sexual harassment cases arising under Missouri law will be handled much differently in the future. Such cases, particularly those arising out of the Eastern District, will likely apply the strict liability framework announced by the Missouri Court of Appeals. No longer will supervisory sexual harassment cases arising under Missouri law be analyzed under federal standards. This will inevitably lead to more complex pleadings that attempt to articulate the more stringent standards of Missouri law and will conceivably lead to an host of amended complaints seeking relief under this paradigm. It is also quite probable that the state courts of Missouri will see an increase of sexual harassment claims filed under the MHRA.

For plaintiffs, this case allows their silence to no longer be considered a weakness or a defect to their claims. However, as the Pollock court noted, such silence must be viewed within the "totality of the circumstances" unique to each individual case. In Pollock, several instances existed where perhaps the employer should have been on notice regarding the harassment of Pollock by Driskill. In fact, she did report the harassment to both a co-worker and her chief union shop steward. These critical facts tend to imply that the trial court followed more of a "knew or should have known" standard in evaluating the merits of Pollock's claim.

This new strict liability paradigm does not, however, provide any incentive for such plaintiffs to come forward with their complaints of sexual harassment. This simply reinforces notions of fear and retaliation that belie the very purpose of the MHRA. Employees should be encouraged to report any allegations of sexual harassment so that the problem can be corrected or resolved in the workplace -- not in the courthouse. This decision only encourages employees to seek resolution of their sexual harassment claims through litigation. This seems to be a somewhat counter-productive course of action if the goal of the law is to end such instances of harassment. While victims of harassment may have a variety of reasons for why they remain silent, such silence should not prove the means to an end. And this case certainly does not take a pro-active approach to providing an end to the frequency of sexual harassment.

The most practical impact of this decision for defendants, and most often employers, is the elimination of the affirmative defense set forth by the Supreme Court in Faragher and Ellerth for supervisory sexual harassment cases. No longer will employers be able to assert that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided for by the employer to end or avoid sexual harassment. Rather, the analysis in these cases will rest on the totality of the circumstances approach.

This case emphasizes the vital necessity for employers to have in place a solid prevention program regarding sexual harassment. According to the Pollock decision, such sexual harassment policies must clearly articulate the employer's prohibition of sexual harassment, as well as explicitly establish that the employer will not tolerate any retaliation against those who report such harassment. Moreover, the employer must do more that post this policy and assume that its' employees will make themselves aware of such procedures. It clearly places an impetus on the employer to be carefully monitoring this area and not relying on generalized policies or haphazard enforcement. It is also clear from Pollock that the employer must take the initiative and educate its employees on its policies of harassment and stress the fact that the policy will be strictly enforced. It is, however, yet to be seen whether this strict liability framework will impose an impossible burden on employers that, in essence, forces them to anticipate all potential areas of harassment. This approach could very well tie the hands of employers in its effort to end sexual harassment in the workplace.

VI.    Conclusion

Such new law mandates a critical examination of this area of practice. And the Pollock decision dictates that employment practitioners review their approaches to handling sexual harassment cases involving supervisors. Employers must be advised to make increased efforts in this area to protect against such claims. And employees must be encouraged to report instances of sexual harassment in order to resolve such claims and end the harassment sooner than later.

Endnotes

¹ C. Wayne Davis is an attorney with the law offices of Armstrong Teasdale LLP in St. Louis, practicing in the areas of labor and employment litigation. He received his B.A. in psychology and political science from Webster University in 1993 and his J.D., with honors, from Saint Louis University School of Law in 1996. He is also a member of the Missouri and Illinois bars, the American Bar Association and the Bar Association of Metropolitan St. Louis.

² 11 S.W.3d 754 (Mo. App. E.D. 1999). Presiding Judge Lawrence E. Mooney issued the opinion wherein Judge Paul J. Simon concurred and Kathianne Knaup Crane concurred in the result.

³ Sections 213.010, et seq., RSMo Supp. 1999.

⁴ Pollock, 11 S.W.3d at 760-761.

⁵ Id.

⁶ Id.

⁷ Id.

⁸ It should be noted that Seaman was simply a friend and co-worker. He did not hold a position of supervisory authority that would have put Pollock's employer on notice of Driskill's sexual harassment.

⁹ Pollock, 11 S.W.3d at 761.

¹⁰ Id.

¹¹ Id.

¹² Id.

¹³ Id.

¹⁴ Id.

¹⁵ Id.

¹⁶ Id. at 761-62.

¹⁷ Id. at 762.

¹⁸ Id. The court refused to disturb the trial court's ruling on the issue of the reasonableness of Pollock's rejection of the reinstatement offer from her employer, stating that there was substantial evidence in the record to support a finding that "[p]laintiff's sole problem was Driskill, and that when he was fired, there was no reason for her not to return to work." Id. at 771.

¹⁹ Id. at 762.

²⁰ Id.

²¹ Id.

²² Pollock v. Wetterau Food Distribution Group, 11 S.W.3d 754 (Mo. App. E.D. 1999).

²³ 8 C.S.R. § 60-3.04(17)(c).

²⁴ 24 Mo. Reg. 2565.

²⁵ Id.

²⁶ Id.

²⁷ 24 Mo. Reg. 2565. The emergency amendment was filed on September 17, 1999 with an effective date of September 27, 1999. This amendment, which was simultaneously proposed for permanent adoption, was set to expire on March 24, 2000.

²⁸ Pollock, 11 S.W.3d at 763-64. The court held that "the fact that some of the incidents occurred outside of the workplace does not relieve Defendant of liability." Id. at 764. In so doing, the court noted that "courts frequently consider incidents occurring outside the workplace in determining whether the work situation was intolerable." Id.

²⁹ 25 Mo. Reg. 144.

³⁰ Pollock, 11 S.W.3d at 754.

³¹ Id. at 764.

³² Id. quoting Bell v. Dynamite Foods, 969 S.W.2d 847, 853 (Mo. App. E.D. 1998).

³³ Pollock, 11 S.W.3d at 765.

³⁴ Id. In so ruling, the court referenced Woodward v. City of Worland, 977 F.2d 1392, 1402 (10th Cir. 1992) ("There certainly may be situations where lodging a complaint with a supervisor would be perceived by a reasonable person to be a clearly futile act. . .").

³⁵ Pollock, 11 S.W.3d at 765.

³⁶ Id. at 764-765.

³⁷ 8 C.S.R. § 60-3.04(17)(c).

³⁸ 975 F. Supp. 1235 (E.D. Mo. 1997).

³⁹ Id. at 1239-40.

⁴⁰ 11 S.W.3d at 766 citing Shepard Well Drilling Co. v. St. Louis County, 912 S.W.2d 606, 609 (Mo. App. E.D. 1995). The court did not, however, close the door to any challenges to its interpretation of these provisions of the MHRA by noting that "[d]efendant has not challenged the procedure used to promulgate 8 C.S.R. 60-3.04(17)(c), nor alleged that it is constitutionally infirm . . ." 11 S.W.3d at 767.

⁴¹ Meritor Savings Bank v. Vinson, 477 U.S. 57, 63 (1986). The Court also noted that the recent Supreme Court decisions of Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S.742 (1998) altered the Meritor majority that held that employers are not automatically liable for the sexual harassment by their supervisors." These cases now create a presumption of strict liability for sexual harassment, subject to one affirmative defense and only available in cases where such harassment has not culminated in a tangible employment action.

⁴² Section 213.030.1(6), RSMo Supp. 1999.

⁴³ 11 S.W.3d at 767.

⁴⁴ Id.

⁴⁵ This was pursuant to the authority of § 536.028, RSMo Supp. 1999.

⁴⁶ 11 S.W.3d at 767 n.3.

⁴⁷ Id. See also DeClue v. Director of Revenue, 945 S.W.2d 684, 686 (Mo. App. E.D. 1997).

⁴⁸ 11 S.W.3d at 767 citing Wilson v. McNeal, 575 S.W.2d 802, 810 (Mo. App. E.D. 1978).

⁴⁹ 11 S.W.3d at 768.