Sexual Harassment Training Course: Ellison v. Brady and the "Reasonable Woman" Standard

Ellison vs. Brady was a landmark sexual harassment case (!990) that set the "Reasonable Woman" standard (later called the "Reasonable Worker" standard) in sexual harassment law, and has helped to discount the notion that all sexual harassment is little more than harmless flirting, or all in fun, with those who complain about it being overly sensitive or histrionic.

Kerry Ellison had been stalked by a coworker, and her complaints to her employers fell on deaf ears. Her case was tossed out both by the EEOC and a district court, with the harassing behavior being dubbed an "isolated" incident, and "genuinely trivial." However, this judgement was reached based on the perspective of people (mostly men) who might not have viewed the defendant's behavior as damaging or threatening. Ellison took her case to the Court of Appeals, which reversed the decision, stating:

"We realize that there is a broad range of viewpoints among women as a group, but we believe that many women share common concerns which men do not necessarily share. For example, because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.... We cannot say a matter of law that Ellison’s reaction was idiosyncratic or hyper-sensitive. We believe that a reasonable woman could have had a similar reaction."

We know much more about sexual harassment now, and the judge's rationale may not be accurate in describing why sexual harassment can be so damaging--for example, it excludes sexual harassment by women, and sexual harassment of men, both serious and increasing problems. Still, the judge's decision was important because it set the "Reasonable Woman" precedent which stipulated that harassment cases should be evaluated based on the perspective of the harassment or stalking victim. And harassers saying that they "meant no harm" does not discount the experience of the harassment target, or any damage that may have occurred because of the harasser's behavior.

In subsequent years, the "Reasonable Worker" standard has been named to include any type of harassment or stalking regardless of the gender of the victim or harasser. (Might we also add the "Reasonable Student" standard to cover sexual harassment in education?)

Ellison v. Brady was later made the basis for the movie "Hostile Advances," for Lifetime Television.

Below is an excerpt from the transcript of the U.S. Supreme Court document.

 

Kerry Ellison worked as a revenue agent for the Internal Revenue Service in San Mateo, California. During her initial training in 1984 she met Sterling Gray, another trainee, who was also assigned to the San Mateo office. The two co-workers never became friends, and they did not work closely together. Revenue agents in San Mateo office often went to lunch in groups. In June 1986 when no one else was in the office, Gray asked Ellison to lunch. She accepted. Ellison claimed that after the June lunch Gray started to pester her with unnecessary questions and hang around her desk. On October 9, 1986, Gray asked Ellison out for a drink after work. She declined, but she suggested that they have lunch the following week. She did not want to have lunch alone with him, and she tried to stay away from the office during lunch time. One day during the following week, Gray uncharacteristically dressed in a three-piece suit and asked Ellison out for lunch. Again, she did not accept.

On October 22, 1986, Gray handed Ellison a note he wrote her a on a telephone message slip, which read: “I cried over you last night and I’m totally drained today. I have never been in such constant term oil [sic]. Thank you for talking with me. I could not stand to feel your hatred for another day.” When Ellison realized that Gray wrote the note, she became shocked and frightened and left the room. Gray followed her into the hallway and demanded that she talk to him, but she left the building. Ellison later showed the note to Bonnie Miller, who supervised both Ellison and Gray. Miller said that “this is sexual harassment.” Ellison asked Miller not to do anything about it. She wanted to try to handle it herself. Ellison asked a male co-worker to talk to Gray and to tell him that she was not interested in him and to leave her alone. The next day, Thursday, Gray called in sick.

Ellison did not work on Friday, and on the following Monday, she started four weeks of training in St. Louis. Gray mailed Ellison a card and a typed, single-spaced, three-page letter, which she described as a “twenty times, a hundred times weirder” than the prior note. Gray wrote, in part: “I know that you are worth knowing with or without sex…Leaving aside the hassles and disasters of recent weeks. I have enjoyed you so much over these past few months. Watching you. Experiencing you from O so far away. Admiring your style and elan…Don’t you think it odd that two people who have never even talked together, alone, are striking off such intense sparks…I will [write] another letter in the near future.” Explaining her reaction, Ellison stated: “I just thought he was crazy. I thought he was nuts. I didn’t know what he would do next. I was frightened.”

She immediately telephoned Miller. Ellison told her supervisor that she was frightened. She requested that Miller transfer either her or Gray because she would not be comfortable working in the same office with him. Miller asked Ellison to send a copy of the card and letter to San Mateo. Miller then telephoned her supervisor, Joe Benton, and discussed the problem. That same day Miller had a counseling session with Gray. She informed him that he was entitled to union representation. During this meeting, she told Gray to leave Ellison alone. She reminded Gray many times over the next few weeks that he must not contact Ellison in any way. Gray subsequently transferred to the San Francisco office on November 24, 1986. Ellison returned from St. Louis in late November and did not discuss the matter further with Miller. After three weeks in San Francisco, Gray filed union grievances requesting a return to the San Mateo office. The IRS and the union settled the grievances in Gray’s favor, agreeing to allow him to transfer back to the San Mateo office provided that he spend four more months in San Francisco and promise not to bother Ellison.

On January 28, 1987, Ellison first learned of Gray’s request in a letter from Miller explaining that Gray would return to the San Mateo office. The letter indicated that management decided to resolve Ellison’s problem with a six-month separation, and that it would take additional action if the problem recurred.

After receiving the letter, Ellison was “frantic.” She filed a formal complaint with the IRS. She also obtained permission to transfer to San Francisco temporarily when Gray returned. Gray wrote Ellison another letter, which still sought to maintain the idea that he and Ellison had some type of relationship. The IRS employee investigating the allegation agreed with Ellison’s supervisor that Gray’s conduct constituted sexual harassment. In it final decision, however, the Treasury Department (of which the IRS is a unit) rejected Ellison’s complaint because it believed that the complaint did not describe a pattern or practice of sexual harassment. The EEOC also ruled against Ellison because it concluded that the IRS took adequate action to prevent the repetition of Gray’s conduct. Ellison filed a complaint in federal district court against Brady, Secretary of the Treasury, alleging a Title VII violation. The district court granted the defendant’s motion for summary judgment on the ground that Elision had failed to state a case of sexual harassment caused by a hostile working environment; it characterized Gray’s conduct as “isolated and genuinely trivial.” Ellison appealed.

Beezer, Circuit Judge:

In Meritor Saving Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court held that sexual harassment constitutes sex discrimination in violation of Title VII. Courts have recognized different forms of sexual harassment. In “quid pro quo” cases, employers condition employment benefits on sexual favors. In “hostile environment” cases, employees work in offensive or abusive environments. This case, like Meritor, involves a hostile environment claim…

The Supreme Court in Meritor held that Mechelle Vinson’s working conditions constituted a hostile environment in violation of Title VII’s prohibition of sex discrimination. Vinson’s supervisor made repeated demands for sexual favors, usually at work, both during and after business hours. Vinson initially refused her employer’s sexual advances, but eventually acceded because she feared losing her job. They had intercourse over forty times. She additionally testified that he fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions.” The court had no difficulty finding this environment hostile…

[A] hostile environment exists when an employee can show (1) that he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Here, the [defendant] argues that Gray’s conduct was not of a sexual nature. The three-page letter, however, makes several references to sex and constitutes verbal conduct of a sexual nature. We need not and do not decide whether a party can state a cause of action for a sexually discriminatory working environment under Title VII when the conduct in question is not sexual…

To state a claim under Title VII, sexual harassment “must be sufficiently severe and pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” … [The court then reviewed the facts of two cases from other circuits, the Scott case and the Rabidue case, that found no sexually hostile environment despite much evidence of sexual language and conduct, offensive posters, and even some physical contact. The courts in those cases apparently would find a hostile environment only in circumstances in which the plaintiff has suffered serious psychological effects.] We do not agree with the standard set forth in Scott and Rabidue, and we choose not to follow those decisions…

Surely, employees need not endure sexual harassment until their psychological well-being is seriously affected to the extent that they suffer anxiety and debilitation….

Although an isolated epithet by itself fails to support a cause of action for a hostile environment, Title VII’s protection of employees from sex discrimination comes into play long before the point where victims of sexual harassment require psychiatric assistance…

We…believe that Gray’s conduct was sufficiently severe and pervasive to alter the conditions of Ellison’s employment and create an abusive working environment. We first note that,…. although a single act can be enough…repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident….

Next, we believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. Courts “should consider the victim’s perspective and not stereotyped notions of acceptable behavior.”…Conduct that many men consider unobjectionable may offend many women. A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a ‘great figure’ or ‘nice legs.’ The female subordinate, however, may find such comments offensive; men and women are vulnerable in different ways and offended by different behavior. Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object”; the characteristically male view depicts sexual harassment as comparatively harmless amusement.

We realize that there is a broad range of viewpoints among women as a group, but we believe that many women share common concerns which men do not necessarily share. For example, because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive. One writer explains: “Their greater physical and social vulnerability to sexual coercion can make women wary of sexual encounters. Moreover, American women have been raised in a society where rape and sex- related violence have reached unprecedented levels, and a vast pornography industry creates continuous images of sexual coercion, objectification and violence….Because of the inequality and coercion with which it is so frequently associated in the minds of women, the appearance of sexuality in an unexpected context or a setting of ostensible equality can be an anguishing experience.”

In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hyper-sensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable women would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment….Of course, where male employees allege that coworkers engage in conduct which creates a hostile environment, the appropriate victim’s perspective would be that of a reasonable man….

We note that the reasonable victim standard we adopt today classifies conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment….

To avoid liability under Title VII, employers may have to educate and sensitize their workforce to eliminate conduct which a reasonable victim would consider unlawful sexual harassment….If sexual comments or sexual advances are in fact welcomed by the recipient, they, of course, do not constitute sexual harassment. Title VII’s prohibition of sex discrimination in employment does not require a totally desexualized work place….

We cannot say a matter of law that Ellison’s reaction was idiosyncratic or hyper-sensitive. We believe that a reasonable woman could have had a similar reaction. After receiving the first bizarre note from Gray, a person she barely knew, Ellison asked a co-worker to tell Gray to leave her alone. Despite her request, Gray sent her a long, passionate, disturbing letter. He told her he had been “watching” and “experiencing” her; he made repeated references to sex; he said he would write again. Ellison had no way of knowing what Gray would do next. A reasonable woman could consider Gray’s conduct, as alleged by Ellison, sufficiently severe and pervasive to alter a condition of employment and create an abusive working environment….

We next must determine what remedial actions by employers shield them from liability under Title VII for sexual harassment by co-workers. [The question is, when management knows or has reason to know of the harassment, has it taken adequate steps to stop the harassment? Because the district court in this case granted a summary judgment against Ellison on the hostile environment issue, the court did not deal with the question of whether the employer took adequate steps upon learning of Gray’s conduct. Before remanding the case to the district court for a trial on both the hostile environment question and the employer liability question, the Court of Appeals provided some general guidelines for the district court to follow in determining whether an employer has taken sufficient steps to avoid liability:] Employers have a duty to “express strong disapproval” of sexual harassment, and to “develop appropriate sanctions” [that are]…”reasonably calculated to end the harassment.”…

In Barrett v. Omaha National Bank, 726 F.2d 424 (8th Cir. 1984), the Eighth Circuit held that an employer properly remedied a hostile working environment by fully investigating, reprimanding a harasser for grossly inappropriate conduct, placing the offender on probation for ninety days, and warning the offender that any further misconduct would result in discharge…. An employer’s remedy should persuade individual harassers to discontinue unlawful conduct. We do not think that all harassment warrants dismissal; rather, remedies should be “assessed proportionately to the seriousness of the offense.” Employers should impose sufficient penalties to assure a workplace free from sexual harassment….

[The Court of Appeals then noted some possible inadequacies in the employer’s response to Gray’s conduct: First, the employer had not indicated that he would be punished if he continued the behavior. Second, the employer had not disciplined Gray; neither the counseling nor the temporary transfer were disciplinary actions. Third, it was not appropriate for the employer to permit Gray to come back to the San Mateo office if his mere presence would continue to create a sexually hostile environment. Fourth, if Gray’s mere presence would continue to create a hostile environment, it is not appropriate to transfer Ellison; the employer’s response should not have negative consequences for the victim. The Court of Appeals concluded that there was a genuine fact issue as to the sufficiency of the employer’s response. We reverse the district court’s decision that Ellison did not allege a case of sexual harassment due to a hostile working environment, and we remand for [a trial on this question and on the question of whether the employer took sufficient remedial steps to avoid liability for a Title VII violation.

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