New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

Support Of Lawyers/Legal Personnel All Concern Encouraged

NH Bar's Litigation Guidelines
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency

Member Login
username and password

Bar Journal - March 1, 1999

Sexual Harassment Investigations & Good-Faith Firings of Alleged Harassers - What is the Jury's Role?

By:
 

INTRODUCTION

Much ink has been spilled lately about sexual harassment and alleged victims' rights. The alleged victims, however, are not the only ones complaining. When persons accused of sexual harassment are terminated for breaching company policy and violating the law, those persons often are in the unenviable position of having to come home to their families and tell them that they lost their job. In that circumstance, the alleged harassers probably would not admit to their spouses that the harassment actually occurred.

Spawned by the loss of income and the accompanying humiliation and rejection, those alleged harassers, with the support of their families, may strike back. The best defense is a strong offense, right? Well, many alleged harassers do fight back and claim that their employers wrongfully terminated them, relying on a plethora of legal theories in so doing. The employers then find that they are defending themselves simultaneously on two fronts. The first suit is a sexual harassment action by the alleged victim and the second is a wrongful termination suit by the alleged harasser.

BACKGROUND -- SUPREME COURT DECISIONS

Educated employers are now aware that they can protect themselves from liability for sexual harassment in most instances by carefully investigating allegations of harassment and taking prompt and appropriate corrective action.1 In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth,2 the United States Supreme Court decided two seminal cases with respect to employer liability for acts of sexual harassment by supervisors. For the first time, the Supreme Court enunciated an affirmative defense that employers could assert when a supervisor engaged in sexual harassment yet the alleged victim suffered no "tangible employment action."3 The affirmative defense comprises two essential elements:

  1. That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
  2. That the person allegedly harassed unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.4

To comply with the first element, employers must establish and implement an effective harassment prevention program, which includes carefully drafted policies and training for everyone in the workforce. Equally important, this program must provide for the effective investigation of harassment complaints that may arise.5

Since these critical decisions, defense lawyers have been reiterating what they have been saying all along: employers must have an anti-harassment policy, an effective internal complaint procedure, preventative training programs, the resources (in-house or access to an objective third person) to conduct a prompt and thorough investigation, and a willingness to impose disciplinary measures, when appropriate, at the conclusion of a sexual harassment investigation.

Attorneys representing businesses regularly advise clients of how to protect themselves against sexual harassment suits brought by the alleged victims of sexual harassment. They would be remiss if they failed to simultaneously advise clients of the alleged harassers' rights. Many employers may not realize that their responses to allegations of sexual harassment may expose them to liability to the alleged harassers. Employers who fail to investigate thoroughly or who improperly investigate a sexual harassment complaint and who, nevertheless, take action against the alleged harassers, may risk being sued under a number of different theories.

A $26.6 million jury award on July 15, 1997 to a former Miller Brewing Company executive in Milwaukee who sued the company for firing him after he discussed a racy episode of "Seinfeld" with a female co-worker brought this issue to the national spotlight.6 In 1993, Jerold Mackenzie was fired from his $95,000-a-year job after talking about an episode on the former NBC sitcom where Jerry Seinfeld's character cannot remember the name of his girlfriend, only that it rhymes with a female body part. The girlfriend's name was Dolores. The co-worker complained to the human resources director about Mackenzie's conduct.

This case focused a great deal of attention on the notion that accused harassers have rights. The alleged harassers may protest that what they are accused of does not necessarily amount to sexual harassment. They may claim that the employer's response was not appropriate, for a variety of reasons. More often, they outright deny that they engaged in the complained-of behavior. Rather than believing that they are being disciplined or terminated for sexual harassment, they may try to find (or craft) another reason why the employer took the action it did. The claim becomes that the "sexual harassment" problem was a convenient pretext used by the employer to obscure the real reason for termination. Of course, there are times when that may be the case.

The Supreme Court, in its opinions, made social policy decisions in balancing the rights of an alleged sexual harassment victim with an employer's rights to control unlawful workplace behavior. A natural tension in that circumstance is created. The Court, however, did not address the issue of retribution litigation by the alleged harasser.

FRAMING A CAUSE OF ACTION

Suits are brought by alleged harassers under a number of different theories, including wrongful termination,7 defamation,8 tortious interference with contractual relations,9 negligent infliction of emotional distress,10 intentional infliction of emotional distress,11 negligent investigation,12 breach of implied covenant of good faith and fair dealing,13 breach of contract,14 promissory estoppel,15 and statutory claims under state and federal discrimination laws.16 As with many other employment claims, plaintiffs often plead a laundry list of claims against which the employer must defend.17 Of course, not all of them are successful and many are subject to an employer's dispositive motion.

DEFINING THE JURY'S ROLE

In defending disciplinary actions taken against alleged harassers after reports of sexual harassment, must the employer prove that the sexual harassment actually occurred? According to the majority of courts, the answer is no - the employer need only show that it acted with objective reasonableness in making its factual determination about whether or not sexual harassment occurred. In other words, the jury is not to decide if a more thorough investigation would have uncovered different facts.

The prevailing case law is, therefore, in the employers' favor, when the pre-termination investigation is challenged. The majority of courts have decided that they may not penalize the legitimate exercise of managerial discretion. The standard that has been enunciated for the jury's role in such situations is as follows: simply to assess the objective reasonableness of the employer's factual determination of misconduct and not to determine whether the alleged misconduct actually occurred. This standard, which checks the subjective good faith of the employer with an objective reasonable belief standard, is intended to strike a balance between the employer's interest in making needed personnel decisions and the employee's interest in continued employment.

A minority of courts, however, disagree.18 They say that the jury's role is to determine whether the discharged employee in fact committed the act leading to dismissal and whether a more through investigation would have uncovered different facts.

COTRAN AND ITS PROGENY

After some false starts by various courts, the California Supreme Court articulated a standard to be followed, consistent with the United States Supreme Court's decisions, in striking a socially-engineered balance. Recognizing that an accused's ability to bring a wrongful termination suit may chill an employer's willingness to act, the California Court said that an employer is not better off turning a blind eye and not dealing with the alleged harassment.

This recent decision sparked national debate about this issue and is hailed by many legal analysts now as the "leading case" on the subject. In Cotran v. Rollins Hudig Hall Int'l, Inc.,19 Ralph Cotran ("Cotran") worked as a senior vice-president and western regional international manager for Rollins Hudig Hall International, Inc. ("Rollins"), an insurance brokerage firm, at its California office. He held this position from January 1988 until 1993 when he was fired. The facts leading to Cotran's termination are set forth below.

In March 1993, an employee in Rollins' international department reported to Deborah Redmond, the company's human resources director, that Cotran was sexually harassing two employees, Carrie Dolce and Shari Pickett. On March 24, Redmond interviewed both women separately, and each confirmed Cotran had harassed her. Two days later, both women furnished statements (and later sworn affidavits) to Redmond stating that Cotran had exposed himself, masturbated in their presence more than once, and made repeated obscene telephone calls to them at home. Redmond then sent copies of their statements to Rollins' equal employment opportunity ("EEO") office in Chicago and to the president of the company, Fred Feldman. Feldman then arranged to meet with Cotran in Chicago, together with two other EEO managers.

At the meeting, Feldman reviewed with Cotran the accusations that Dolce and Pickett had made against him. He advised Cotran that the company would undertake an investigation into the complaints. He read Cotran the women's statements and explained how the investigation would proceed. During the meeting, Cotran did not reveal the fact that he had previously engaged in consensual sexual relations with both of his two accusers at different times, nor did he offer an explanation about the allegations. Cotran was suspended pending completion of the sexual harassment investigation.

Over the next two weeks, Rollins' manager for EEO compliance, Susan Held, interviewed twenty-one (21) people who had worked with Cotran, including five individuals whom he had asked her to interview. Held concluded that both accusers, Dolce and Pickett, appeared credible. Her investigation showed that Cotran had no prior history of engaging in alleged sexual harassment while at Rollins.

There were, however, two incidents involving Cotran and other Rollins employees which came to light during the course of the investigation. One Rollins account executive signed an affidavit, saying that Cotran had made obscene telephone calls to her when they both worked for another company, soon after a sexual relationship between the two had ended. Another woman described a "strange" middle of the night phone call from Cotran, unrelated to any business.

At the conclusion of the investigation, Held concluded that it was more likely than not that the harassment of Dolce and Pickett had occurred. She relied on the following three reasons: (1) receiving confirmation from third parties that Cotran had in fact telephoned Dolce and Pickett at home; (2) her credibility assessment of Dolce and Pickett; and (3) the fact that no one she interviewed had said it was "impossible" to believe Cotran had committed the alleged sexual harassment. After Cotran was fired for this alleged misconduct, he sued Rollins.

At Cotran's wrongful termination trial, a different story about the alleged harassment was revealed. Specifically, Cotran testified that he met Dolce in December 1990 when she was a temporary Rollins employee. After she left the company's employ, Dolce telephoned Cotran and suggested they meet socially. They had lunch together several times. Dolce then asked Cotran for a job as a temporary secretary in his department, and he agreed. She began working at Rollins again in February 1991 and became a regular employee in April. In May, Cotran testified that they began an intermittent affair that lasted through February 1993. He estimated that they had sexual relations between six and ten times, including three times at a hotel room Cotran had reserved for their lunch hour. He produced credit card receipts from the hotel for rooms rented during that period.

As for Pickett, Cotran testified that they too had an affair. According to Cotran, this liaison lasted from January to April 1992. Cotran offered corroborating testimony from witnesses at trial as to his personal relationship with her. Indeed, Cotran's mother testified that she saw Pickett at her son's house and witnessed them leave the house together. Cotran's martial arts trainer also testified that he met Pickett at Cotran's house during this time period.

Both Dolce and Pickett denied ever having sex with Cotran.

In explaining why he did not reveal the nature of his relationships with either Dolce or Pickett previously, Cotran testified that he was "frightened" and felt "ambushed" by Rollins. Of significance, Cotran began an intimate relationship with his wife-to-be in June 1992 and she moved in with him the following month. They got married in October. During this time frame, nevertheless, Cotran continued his affair with Dolce (but not with Pickett). Cotran testified he was unwilling early on to admit readily to his employer the full history he had with either Dolce or Pickett. As exemplified by the Clinton/Lewinsky escapade, lying about sex is far from unusual behavior.

At trial, in addition to the testimony enunciated above, Cotran offered evidence that Dolce had been "flirtatious" in front of others, that Dolce and Pickett were upset because Cotran had been "two-timing" them, and that Dolce's real motive was a substantial pay increase.

Rollins' defense to the wrongful termination claim was that the company reached its decision honestly and in good faith, and posited that it was not required to prove that the acts of sexual harassment occurred in order to justify Cotran's termination.20 The trial court rejected Rollins' view of the law. In a jury instruction that was determinative of the case's outcome, the court advised the factfinders that Rollins had the burden of proving that Cotran committed the acts of sexual harassment that led to his dismissal and "whether [Rollins] in good faith believed Cotran did it is not at issue."21

Not surprisingly, the jury rendered a verdict in Cotran's favor and awarded him $1.78 million.

On appeal, the California Supreme Court rejected the standard that the lower court followed and, instead, sought a middle ground that would "combin[e] a balanced regard for the employee's interest in continuing employment with the employer's interest in efficient personnel decision[making]. . ."22 The jury's role, the Court explained, is to assess the objective reasonableness of the employer's factual determination of misconduct by the alleged harasser under the circumstances known to the employer at the time the decision was made. The Court noted that the jury is remote from the everyday reality of the workplace:

The decision to terminate an employee for misconduct is one that not uncommonly implicates organizational judgment and may turn on intractable factual uncertainties, even where the grounds for dismissal are fact specific. If an employer is required to have in hand a signed confession or an eyewitness account of the alleged misconduct before it can act, the workplace will be transformed into an adjudicatory arena and effective decisionmaking will be thwarted. Although these features do not justify a rule permitting employees to be dismissed arbitrarily, they do mean that asking a civil jury to reexamine in all its factual detail the triggering cause of the decision to dismiss - including the retrospective accuracy of the employer's comprehension of that event - months or even years later, in a context distant from the imperatives of the workplace, is at odds with an axiom underlying the jurisprudence of wrongful termination. That axiom. . . is the need for sensible latitude for managerial decisionmaking and its corollary, an optimum balance point between the employer's interest in organizational efficiency and the employee's interest in continuing employment. (Emphasis supplied).23

The Cotran Court also noted that juries should not be allowed to substitute their opinions for those made by a reasonable employer acting in good faith24 because it would dampen employers' willingness to act when faced with sexual harassment charges.

In short, by coupling "good faith" with "objectivity," the Court intended "to place the trier of fact in the position of the 'reasonable employer'25 in deciding whether the defendant in a wrongful termination suit acted responsibly and in conformity with prevailing social norms in deciding to terminate an employee for misconduct. While the jury must assess the legitimacy of the employer's decision, it should not be 'thrust into a managerial role.'"26

The rationale underlying this good-faith, reasonableness standard for employers is articulated in a number of court decisions preceding Cotran. Many of these same cases were relied upon by the California Supreme Court in the Cotran decision. For example, in Southwest Gas Corporation v. Vargas,27 Fausto Vargas was fired for sexually harassing a co-worker. The Nevada Supreme Court held that prudent policy considerations weigh heavily in favor of the "reasonable belief" standard:

[A]llowing a jury to trump the factual findings of an employer that an employee has engaged in misconduct rising to the level of "good cause" for discharge, made in good faith and in pursuit of legitimate business objectives, is a highly undesirable prospect. In effect, such a system would create the equivalent of a preeminent fact-finding board unconnected to the challenged employer, that would have the ultimate right to determine anew whether the employer's decision to terminate an employee was based upon an accurate finding of misconduct. . . This ex officio "fact-finding board," unattuned to the practical aspects of employee suitability over which it would exercise consummate power, and unexposed to the entrepreneurial risks that form a significant basis of every state's economy, would be empowered to impose substantial monetary consequences on employers whose employee termination decisions are found wanting.28

Accordingly, in that case, the jury was instructed that the core issue was whether Southwest "reasonably believed" that Vargas had sexually harassed other employees.29

Similarly, the Washington Supreme Court, in Baldwin v. Sisters of Providence in Washington, Inc.,30 decided that the power to decide whether acts amounting to misconduct had occurred resided with the employer, not the jury. That Court articulated the standard as follows: one that "checks the subjective good faith of the employer with an objective reasonable belief."31 In particular, the Court described this standard as one that is fair, honest, regulated by good faith, supported by substantial evidence, and reasonably believed by the employer to be true.32 Moreover, the Court found that it is marked by the absence of any arbitrary, capricious, or illegal reason.

In a third case, Kestenbaum v. Pennzoil Company,33 the New Mexico Supreme Court adopted a standard substantially similar to the good-faith, reasonableness rule followed in states such as Oregon, Washington, and Nevada. The Court ruled that the proper issue for the jury in Kestenbaum was whether the employer "had reasonable grounds to believe that sufficient cause existed to justify [the employee's] termination."34

Many courts hold that, like in Cotran, an employer's good-faith determination that it has cause to terminate an employee is sufficient, and that the employer's decision to terminate an employee for cause should not be second-guessed by a jury.35

MINORITY VIEW

The leading case that supports the opposing view is Toussaint v. Blue Cross & Blue Shield of Michigan.36 There, the Supreme Court of Michigan expressed its view that where the employer claims that the employee was discharged for specific misconduct and the employee claims that he or she did not commit the misconduct alleged, the question is one of fact for the jury: did the employee do what the employer said he or she did?37 The Court relied on older cases from Michigan and South Carolina as precedent for this standard.38

In Toussaint, Charles Toussaint was employed in a middle-management position with Blue Cross, and was discharged after being employed for five years. According to Blue Cross, Toussaint was terminated because of personality conflicts with other employees and insubordination in a meeting with Blue Cross executives inquiring into his alleged mismanagement of the company's car pool. Toussaint denied the allegations. He charged that his termination violated an employment agreement that permitted discharge only for cause.

The Michigan jury rendered a verdict in his favor in the amount of $72,835.52. That state's highest court upheld the verdict, ruling that the question of cause for discharge was properly one for the jury. The court found: "It was for the jury to resolve the factual issues whether there was a contract and whether there were personality conflicts and Toussaint was insubordinate, and further, because there was no allegation that Toussaint had otherwise breached the employment contract, to decide whether there was cause for discharge."39

Similarly, other courts hold that the employer must show that cause actually existed where an employment contract requires "cause" for termination.40 The rationale for this rule was exemplified well in the dissenting opinion in Simpson v. Western Graphics Corp.,41 where Justice Lent posited the following hypothetical situation:

Suppose that the Employee Handbook provided that an employee could be discharged for tardiness only if the employee were tardy more than ten times in a quarter year. Because of an honest error in keeping records, the timekeeper informs the employer that a certain employee has been tardy eleven times in the first two months of the quarter. The employer, or managing employee with the power to fire, examines the evidence produced by the timekeeper, believes it and acts upon it in good faith by firing the putative latecomer.

Under a rule where an employer's good faith, subjective determination was sufficient, the employee would have no redress even if the employee in fact was never once late for work. There, the employee effectively would be fired for no cause, despite the promise in the manual that employees would be discharged only for good cause.

LESSONS FROM SUPREME COURT'S TEACHING

In Waters v. Churchill,42 the United States Supreme Court adopted the "reasonable grounds" standard in determining the propriety of a government employee's discharge for cause. In that case, the plaintiff nurse was fired by a public hospital allegedly because of statements the nurse made in a workplace conversation with a co-worker that constituted disparaging remarks about her department. The First Amendment, therefore, was implicated.

The Supreme Court held that the proper standard for reviewing the employer's decision to terminate was to look at the facts as the employer found them to be, and analyze whether the employer reached its decision in good faith and on the basis of reasonable grounds.43 The Court observed that a rule which would require "absolute certainty" to justify a discharge for cause is fraught with problems because:

[I]t would force the government employer to come to its factual conclusions through procedures that substantially mirror the evidentiary rules used in court. The government manager would have to ask not what conclusions she, as an experienced professional, can draw from the circumstances, but rather what conclusions a jury would later draw. If she relies on hearsay, or on what she knows about the accused employee's character, she must be aware that this evidence might not be usable in court. If she knows one party is, in her personal experience, more credible than another, she must realize that the jury will not share that personal experience. If she thinks the alleged offense is so egregious that it is proper to discipline the accused employee even though the evidence is ambiguous, she must consider that a jury might decide the other way.

But employers, public and private, often do rely on hearsay, on past similar conduct, on their personal knowledge of people's credibility, and on other factors that the judicial process ignores. Such reliance may sometimes be the most effective way for the employer to avoid future recurrences of improper and disruptive conduct. What works best in a judicial proceeding may not be appropriate in the employment context. If one employee accuses another of misconduct, it is reasonable for a government manager to credit the allegation more if it is consistent with what the manager knows of the character of the accused. Likewise, a manager may legitimately want to discipline an employee based on complaints by patrons that the employee has been rude, even though these complaints are hearsay.44

The Court recognized the importance of First Amendment rights and the need to safeguard possibly protected speech. In this case, however, the Court concluded that employees' rights would not be unduly burdened by having courts look to the facts as the employer reasonably found them to be. If the employer acts unreasonably, then the discharged employee has redress. The Court offered the following example of what may be unreasonable employer conduct: if, for instance, an employee is accused of writing an improper letter to the editor and, instead of just reading the letter, the employer decides what it said based on unreliable hearsay.45

The principles enunciated by the Supreme Court are instructive and applicable in the sexual harassment context. At trial, the evidentiary rules necessarily come into play and there are limitations on the admissibility of character evidence and hearsay. In the workplace, however, an employer sifts through all the information available (much of which may not be available to a jury) and, based on its personal knowledge and experience, makes its disciplinary decision. The jury just cannot fit into the employer's shoes in making that decision.

ANALOGY TO STATUTORY BURDEN-SHIFTING CLAIMS

Under the teaching of McDonnell Douglas Corp. v. Green,46 the courts apply a burden-shifting framework in determining liability for discrimination under Title VII of the Civil Rights Act of 1964, as amended. Initially, the employee must show a prima facie case of discrimination after which the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment decision.47 The burden of production then returns to the plaintiff, who must show both that the employer's reason is a pretext and that the employer possessed discriminatory animus.48

Alleged harassers have sought to recover under Title VII, the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and similar federal and state statutes when they charge that they were terminated for improper reasons.

An oft-cited case demonstrating this principle is Elrod v. Sears Roebuck and Co.49 There, the Eleventh Circuit examined the case where Sears believed James Elrod had sexually harassed female employees in its Jacksonville Credit Central Office and fired him as a result. In that case, Sears had received an anonymous letter sent by an employee in the Jacksonville office complaining about Elrod's humiliating and degrading behavior toward female employees, consisting of vulgar and obscene conversations and gestures. Sears then conducted an investigation, which included interviewing several employees in Jacksonville, and concluded that unlawful harassment had occurred.

As punishment, Sears agreed that Elrod should publicly apologize to the employees in his office, be counseled in a so-called "Deficiency Interview," and sign a written memorandum acknowledging the deficiency interview. Shortly thereafter, however, confirmed reports indicated that Elrod then displayed a vindictive attitude toward those employees whom he believed had reported the harassment. Particularly, Elrod had threatened to "get those bitches" and even insinuated that there were certain women in his office he would like to kill. After Sears confirmed this information, it terminated Elrod.

Elrod then sued Sears. He alleged that he was fired because of his age, 51 years, in violation of the ADEA. At approximately the same time as Elrod's dismissal, Sears announced it was closing an Atlanta office, and many employees were consequently displaced. One manager who was younger than Elrod was transferred to Jacksonville where he became the new credit office manager, replacing Elrod.

Much of Elrod's proof at trial centered on whether Elrod was in fact liable for sexual harassment. The Eleventh Circuit rejected this evidence, holding it was completely irrelevant to the proper legal analysis:

We can assume for purposes of this opinion that the complaining employees. . . were lying through their teeth. The inquiry of the ADEA is limited to whether [Sears] believed that Elrod was guilty of harassment, and if so, whether this belief was the reason behind Elrod's discharge. Federal courts "do not sit as a super-personnel department that reexamines an entity's business decisions. No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, the ADEA does not interfere. Rather, our inquiry is limited to whether the employer gave an honest explanation of its behavior. For an employer to prevail the jury need not determined that the employer was correct in its assessment of the employee's performance; it need only determine that the defendant in good faith believed plaintiff's performance to be unsatisfactory."50

Similar to Elrod, the Fifth Circuit, in Waggoner v. City of Garland, Texas,51 considered an age discrimination case brought by Bennett Waggoner. The City had fired Waggoner for sexual harassment of a female co-worker, following an investigation. At trial, Waggoner attempted to proffer evidence on the veracity of the underlying charge of sexual harassment. The trial court concluded that whether or not Waggoner engaged in sexual harassment was largely irrelevant. The true issue was whether the City believed in good faith that he had committed the offensive behavior that culminated in his discharge.

On the other hand, if the employer did not actually believe the complained-of harassment took place but instead used the complaint as a pretext for an otherwise discriminatory dismissal, then the employer acted unlawfully. For accused harassers to prevail on a wrongful termination suit, they must produce evidence that the employer did not in good faith believe the allegations but, instead, relied on them in a bad-faith pretext to discriminate against them on the basis of age, sex, or other protected category.52 Courts have limited their inquiries in those cases to whether the employer's stated reasons for the employment action was a cover-up for unlawful discrimination.53

It follows that employers should not face a greater burden in breach of contract claims or other common-law actions than they face in discrimination actions, especially in light of the greater protections the law attempts to provide alleged victims of Title VII and the other federal statutes aimed at eradicating discrimination, such as the ADEA and the ADA.54 The liability standard for employers under federal statutory law is limited to whether they could rely upon a legitimate and nondiscriminatory reason for the adverse employment action. The courts and juries are not empowered to judge the propriety of that reason other than to assess if it is not really the true reason for the action.

CONCLUSION

Employers are duty-bound to investigate -- thoroughly and in good faith - every complaint of sexual harassment lodged in the workplace. Based on the results of that investigation, they must take appropriate remedial action to prevent the harassment from recurring. The rationale of Cotran, its progeny, and its followers is well-reasoned, legally and factually, as well as sensible in its application.

Most important, with the very recent cases in the United States Supreme Court evincing a social policy encouraging employers to have thorough sexual harassment policies, complaint procedures and training programs, the Cotran rationale does not make these efforts a double-edge sword by creating a too easy road for accused harassers to follow in seeking retribution from their former employers. If the minority rule such as Michigan's Toussaint were followed, it would effectively frustrate the demonstrated benefits (not to mention affirmative defense) of having employers aggressively investigate sexual harassment complaints. Thus, the evolving legal standard in employee retribution litigation appears consistent with the Supreme Court's guidance regarding training, complaint procedures and investigations. It is also consistent with how the federal courts treat discrimination suits brought by alleged harassers, as explained fully in Elrod. To hold otherwise, would place a risk far too great for employers to bear when responding to sexual harassment allegations in the workplace.

ENDNOTES

1.

See Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257, 1998 U.S. LEXIS 4217 (1998); Faragher v. City of Boca Raton, 118 S. Ct. 2275, 1998 U.S. LEXIS 4216 (1998). Of course, the employer must also have in place preventative programs, particularly a comprehensive anti-harassment policy and grievance procedure.

2.

Id.

3.

The Supreme Court defines a "tangible employment action" as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Industries, Inc., 1998 U.S. LEXIS 4216, at *35.

4.

Faragher, 1998 U.S. LEXIS 2275, at *59-60.

5.

This does not mean that the employer must have one or more persons in-house who are capable of conducting an "appropriate" sexual harassment investigation. Rather, the employer must be in a position to respond by having a sexual harassment complaint promptly and thoroughly investigated. The appropriate investigator may be a manager, human resources person, in-house counsel or outside investigator or attorney, depending on the facts and circumstances.

6.

The case was Mackenzie v. Miller Brewing Co., No. 94-CV-010871 (Cir. Ct., Milwaukee County). There was no published decision.

7.

See, e.g., Olive v. City of Scottsdale, 969 F. Supp. 564, 577-78 (D. Ariz. 1996); Soliz v. Great Western Bank, 66 Cal. App. 4th 1482, 78 Cal. Rptr. 2d 696 (1998); Starishevsky v. Hofstra Univ., 161 Misc. 2d 137, 612 N.Y.S.2d 794 (1994).

8.

See, e.g., Duffy v. Leading Edge Products, Inc., 44 F.3d 308 (5th Cir. 1995); Rosenbloom v. Senior Resources, Inc., 974 F. Supp. 738, 745-46 (D.C. Minn. 1997); Lambert v. Morehouse, 843 P.2d 1116, 1120 (Wash. 1993).

9.

See, e.g., Delloma v. Consolidation Coal Co., 996 F.2d 168 (7th Cir. 1993); Miller v. Servicemaster by Rees, 851 P.2d 143, 144-45 (Ariz. Ct. App. 1992).

10.

See Tischmann v. ITT/Sheraton Corp., 882 F. Supp. 1358 (S.D.N.Y. 1995).

11.

See, e.g., Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 805-06 (6th Cir. 1994); Martin v. Baer, 928 F.2d 1067, 1074 n.15 (11th Cir. 1991); Bellairs v. Coors Brewing Co., 907 F. Supp. 1448, 1459 (D. Colo. 1995), aff'd 107 F.3d 880 (10th Cir. 1997); Gonzales v. CNA Ins. Co., 717 F. Supp. 1087 (E.D. Pa. 1989).

12.

See, e.g., Ashway v. Ferrellgas, Inc., 1991 U.S. App. LEXIS 10769 (9th Cir. 1991); Lambert, supra note 7.

13.

See, e.g., Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 854 (7th Cir. 1997; Tischmann, supra note 9; Townsend v. Living Centers Rocky Mt., Inc., 947 P.2d 1297 (Wy. 1997); Gonzales, supra note 10.

14.

See, e.g., Scherer v. Rockwell Int'l Corp., 975 F.2d 356 (7th Cir. 1992); Bellairs, supra note 10; Ashway, supra note 11.

15.

Bellairs, supra note 10.

16.

See, e.g., Greenslade, supra note 12; Williams v. General Mills, Inc., 926 F. Supp. 1367 (N.D. Ill. 1996); Evans v. Bally's Health & Tennis Club, Inc., 64 FEP Cases (BNA) 33 (D. Md. 1994); Raleigh v. Snowbird Corp., 992 F. Supp. 1295 (D.C. Utah 1998).

17.

See Malik v. Carrier Corp., 986 F. Supp. 86, 87 (D. Conn. 1997).

18.

See Toussaint v. Blue Cross & Blue Shield of Michigan, 292 N.W.2d 880 (Mich. 1980); see infra notes 34-36.

19.

17 Cal. 4th 93, 948 P.2d 412 (1998).

20.

The parties did not have any express contract for employment; rather Cotran contends he had an implied agreement with Rollins that his employment could be terminated only for "good cause" shown.

21.

Cotran, 948 P.2d at 416.

22.

Id. at 418-19.

23.

Id. at 421 (citations omitted).

24.

The California Supreme Court declined to specify the essential factors of an adequate investigation.

25.

This standard is similar to Prosser and Keeton's "reasonable person" - "this excellent but odious character'" - as a "personification of a community ideal of reasonable behavior, determined by the jury's social judgment." Cotran, 948 P.2d at 421 (quoting Prosser and Keeton (5th ed. 1984) Torts, Sect. 32, pp. 174, 175 fn. omitted)).

26.

Cotran, 948 P.2d at 417 (quoting with approval from Pugh v. See's Candies, Inc., 203 Cal. App. 3d 743, 250 Cal. Rptr. 195 (1988)).

27.

901 P.2d 693, 699 (Nev. 1995).

28.

Id. at 699.

29.

Vargas alleged breach of an employment contract based upon two theories: (1) that the alleged misconduct for which he was terminated did not amount to good cause; and (2) that Southwest wrongfully failed to apply progressive discipline procedures prior to his termination. On the issue of "good cause" for termination, the jury, with the apparent acquiescence of each party, was instructed as follows:

Termination for cause means a legitimate reason for making a decision to discharge an employee. An employer is entitled to assess and deter mine the quality and acceptability of the employee's performance and conduct and to rely upon facts the employer reasonably believes to be true regarding the employee's behavior.

A legitimate business reason is one rationally related to a lawful business purpose. Termination of an employee for a legitimate business reason is not a breach of a promise to terminate only for cause. The plaintiff must prove by a preponderance of the evidence the defendant did not have a legitimate business reason for discharging him.

It is not appropriate for you to substitute your opinion for that of the employer that plaintiff's conduct was not satisfactory. Your task is to decide whether the decision to terminate the plaintiff was made for legitimate reasons.

Southwest Gas Corp., 901 P.2d at 698 n.2.

30.

769 P.2d 298 (Wash. 1989).

31.

Id. at 304.

32.

Id.

33.

766 P.2d 280 (N.M. 1988).

34.

Id. at 287.

35.

See, e.g., Chrvala v. Borden, Inc., 1998 U.S. Dist. LEXIS 10866, at *21 (S.D. Ohio 1998); Frazier v. Minnesota Mining and Manuf. Co., 728 P.2d 87, 88 (Or. App. 1986), rev. denied, 734 P.2d 354 (1987). See also Ashway, supra note 11 ("In light of Arizona's strong public policy against sexual harassment - particularly, the Arizona Supreme Court's ruling in Ford that employers who fail to investigate and remedy sexual harassment may be held liable for damages to the injured employee - we believe the Arizona Supreme Court might well hesitate before allowing a jury to second guess an employer's good faith determination that sexual harassment has occurred.").

36.

292 N.W.2d 880 (Mich. 1980). Accord Raymond v. IBM Corp., 954 F. Supp. 744 (D. Vt. 1997).

37.

Toussaint, 292 N.W.2d at 896.

38.

See Martin v. Southern R Co., 126 S.E.2d 365 (S.C. 1962); Ogden v. George F. Alger Co., 92 N.W.2d 288 (Mich. 1958)(employee denied material breaches of obligations assumed by him; question of breach was for jury); see also Ward v. Consolidated Foods Corp., 480 S.W.2d 483 (Tex.Civ. App. 1972)(employer claimed discharge was for failure to correct sanitation deficiencies; employee claimed he performed duties and discharge was to prevent his exercise of stock option and so that new president could bring in his own people. Question of cause was for jury).

39.

Toussaint, 292 N.W.2d at 897 n. 39.

40.

See Angotti v. State Farm Mut. Auto. Ins. Co., 1991 U.S. App. LEXIS 28187, at *17 (6th Cir. 1991) (applying Michigan law, and holding that the jury may determine whether the employee committed the specific misconduct for which he was fired); Sanders v. Parker Drilling Co., 911 F.2d 191 (9th Cir. 1990) (interpreting Alaska law).

41.

643 P.2d 1276, 1279 (Or. 1982).

42.

511 U.S. 661, 114 S. Ct. 1878 (1994).

43.

Id. at 677.

44.

Id. at 675-76 n.1.

45.

Id. at 677.

46.

411 U.S. 792 (1973).

47.

See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996); McDonnell Douglas Corp., 411 U.S. 792 .

48.

Id.

49.

939 F.2d 1466 (11th Cir. 1991).

50.

Id. at 1470 (citations omitted).

51.

987 F.2d 1160 (5th Cir. 1993).

52.

See also Jacobs v. Delta Air Lines, Inc., 1998 U.S. App. LEXIS 18736 (10th Cir. 1998)(finding that age discrimination plaintiff who challenged veracity of the sexual harassment allegations against him "avoids the relevant inquiry -i.e., whether Delta believed them, and acted in good faith upon that belief in terminating him"); Evans, supra note 15 (court need not determine whether or not plaintiff did in fact engage in sexual harassment of four separate female employees nor whether the employer adequately investigated the charge; narrow issue was whether the employer's stated reason for the termination was a pretext for race discrimination); Baker v. McDonald's Corp., 686 F. Supp. 1474 (S.D. Fla. 1987), aff'd 865 F.2d 1272 (11th Cir. 1988)(where African-American employee discharged for allegedly making unwelcome sexual overtures to female employees alleged race discrimination, court held that upon a showing of reasonable grounds to believe harassment had occurred, employer rebuts any prima facie case presented by the plaintiff).

53.

Id.

54.

See Baldwin, supra note 26.

The Author

Attorney Julie A. Moore, Employment Practices Group, Windham, NH.

 

NHLAP: A confidential Independent Resource

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer