A recent Tenth Circuit Court of Appeals case involving the rape of an employee by her superior clarifies the Tenth Circuit’s case law on when an individual is considered a “supervisor,” and also provides a cautionary tale for employers regarding taking adequate steps to prevent and correct sexual harassment.
Camille Kramer was employed as a jailor and then a bailiff with the Wasatch County Sheriff’s Department in Utah. In 2006, after complaining of sexual harassment in the jail (which included comments made about her breasts as well as male employees viewing pornography on the office computers), she was reassigned to courthouse duty and told to avoid the jail area. The employer failed to take any action against the harassers. At the courthouse, Kramer reported to Sergeant Rick Benson. Kramer hoped her new position would afford her the opportunity to receive the “road training” necessary to advance in her career.
Shortly after Kramer started her new assignment, Benson began asking her if she would give him a foot rub. Kramer repeatedly refused and then jokingly told Benson she would not give him a foot rub unless he brought in a doctor’s note. Apparently not one to take a hint, Benson brought in a “doctor’s note” ordering her to rub his feet. Kramer posted the doctor’s note on the wall near her desk. She still refused the request, but Benson did not let up, and Kramer finally agreed to give him a foot rub “if he would just shut up about it.” After giving him the foot rub at his home, Benson tried to kiss Kramer. Kramer resisted and left.
Sometime thereafter, Benson agreed to give Kramer her road training. Once in Benson’s patrol car for the training, however, Benson sexually assaulted Kramer twice. Kramer did not complain to the sheriff about the assault because after the jail incident she believed her complaints would be fruitless.
Meanwhile, Benson’s behavior toward Kramer became more threatening and controlling. He denied her leave requests and followed her home on several occasions. Kramer expressed her displeasure by posting a sign at her desk that said “Sexual harassment will not be tolerated, it will be graded.” Kramer was asked to remove the sign and was disciplined for posting it, but the employer did not inquire into her motivation for posting it in the first place.
Kramer told her coworkers that she cleaned houses as a second job for extra money. Benson began to demand that Kramer come to his home and clean it. Although she refused many times, eventually she did agree to clean the house, so long as she could bring her children with her. Despite this precaution, when the children were outside playing, Benson raped Kramer.
After the rape, Benson prepared a negative performance evaluation for Kramer, which he threatened to turn in unless she “kept her mouth shut.” Meanwhile, Benson was ordered by a judge to stay out of the judge’s courtroom after he had been intimidating female clerks.
Sometime after this, Benson was out on leave following a surgery. While on leave, he frequently called the courthouse and asked to speak to Kramer. He would give her job-related instructions and then end his phone calls with requests for her to come to his house and “bring him a Coke.” After she repeatedly refused, Benson asked other employees to assist him in badgering Kramer to bring him a Coke, which they did. Eventually, she relented. While at his home, Benson sexually assaulted Kramer again.
Shortly after this incident, Kramer was involved in a serious car accident. While on leave, she told visiting coworkers about Benson’s assaults. She also told them that she had been involved in a consensual relationship with another man, and was pregnant as a result. Although the clerks encouraged her to report Benson’s actions, she did not. The sheriff eventually became aware from one of the clerks that Benson had sexually assaulted Kramer, and that Kramer was pregnant. Suspicious that Benson was the father of Kramer’s unborn child, the sheriff assigned a detective to conduct an investigation. The investigation “focused almost entirely on discovering who was the father of Ms. Kramer’s baby.” The detective urged Kramer to resign, and once the investigation concluded that misconduct had occurred, handed over the investigation to state detectives. Benson eventually resigned.
Kramer brought a lawsuit for sexual harassment under Title VII of the Civil Rights Act and 42 U.S.C. § 1983. The trial court granted summary judgment in favor of the employer, but the Tenth Circuit Court of Appeals reversed the grant of summary judgment for the employer on the Title VII claim.
The court’s decision
Clearly, Sergeant Benson’s actions were reprehensible. But the real question is for which actions the employer could be held liable.
Under the Supreme Court’s Title VII rulings, an employer is vicariously liable for the harasser’s conduct if the harasser is a supervisor rather than a coworker, depending on the circumstances. If the supervisor’s harassment results in a “tangible employment action,” the employer is strictly liable for the harassment, with no defense. On the other hand, if the harassment does not result in a “tangible employment action,” then the employer may still be held liable if the harassment is severe and pervasive, although this is subject to the so-called “Faragher/Ellerth” defense, where the employer is relieved from liability if it is able to prove both that (1) the employer exercised reasonable care to prevent and correct sexually harassing conduct, and (2) the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Ultimately, the court held that the employer here could be liable, because even though no tangible employment action occurred, the sheriff’s department failed to exercise reasonable care to prevent and correct sexually harassing conduct.
Are you my supervisor?
The first issue for the court was whether Benson was Kramer’s supervisor. The Supreme Court’s recent decision in the Vance case clarifies that, for Title VII purposes, a supervisor is “is an employee whom the employer has empowered to take tangible employment actions against the victim, i.e., to effect 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.” Additionally, a manager who works closely with his or her subordinates and who has the power to recommend or otherwise substantially influence tangible employment actions, and who can thus indirectly effectuate them, also qualifies as a “supervisor.”
Here, it was undisputed that only the sheriff could fire Kramer. However, the court found there was still plenty of evidence that Benson was a supervisor. He prepared Kramer’s evaluations, made recommendations about her employment, approved or denied her leave time, and could issue discipline like relieving her from her duties. Benson was Kramer’s only immediate manager and directed her work on an everyday basis. Perhaps even more importantly, Kramer viewed him as her supervisor and believed that he could fire her. In fact, Benson often used this apparent power as a threat over Kramer, telling her that he could fire her if she did not comply with his demands.
Tangible employment action
Since Benson was Kramer’s supervisor, the next question was whether Benson inflicted any “tangible employment actions” so the employer could be held strictly liable. Kramer alleged that the rape was a tangible employment action. The court held that it was not a tangible employment action because there was no “relationship between the rape and an official company action.”
Reasonable action to prevent or correct harassment
Because there was no tangible employment action, the employer could not be held strictly liable, and could avoid liability through the Faragher/Ellerth defense. However, the employer failed to prove that it took reasonable actions to prevent and promptly correct sexually harassing behavior. The investigation into Benson’s conduct focused solely on who was the father of Kramer’s baby, not whether Benson had sexually assaulted or harassed Kramer. The detective conducting the investigation encouraged Kramer to resign. When the investigation was over, the employer did not take any actions against Benson (who resigned), nor did they do anything to prevent future harassment. The employer simply assumed the investigation would be handled as a criminal matter at that point.
Therefore, the employer could not win on summary judgment, and Kramer got a chance to take her case in front of a jury.
From a legal perspective, this case involves some significant rulings. First, it applies the Supreme Court’s decision in Vance, but nonetheless finds Benson to be a supervisor even though he did not have actual hiring or firing authority. Second, the court found the rape not to be a tangible employment action, reasoning that it was not an official action. Third, the court refused to find that the employer had taken reasonable preventive or corrective action simply because the employer had conducted an investigation.
There are several practical lessons to be gleaned here. First, employers should make the chain of command clear. Here, Kramer believed that Benson could fire her even though he did not have such authority. An employer will not be able to take advantage of the Supreme Court’s clearer ruling regarding supervisors when it fails to make clear to employees who has actual supervisory authority.
Second, employers must be vigilant about recognizing and preventing sexual harassment. Here, the employer first ignored the harassment at the jail, instead simply reassigning Kramer and telling her to avoid the area. Then, the employer basically gave Benson free reign over his department despite repeated red flags that he was engaged in inappropriate conduct. Even though Kramer did not report the sexual assaults right away — and that is not the kind of behavior that an employer would suspect of any employee — there were still warning signs that inappropriate behavior was taking place. For example, Kramer’s posting of the foot rub “doctor’s note” and the “sexual harassment will not be tolerated” sign; Benson being kicked out of a courtroom for intimidating female courthouse employees; Benson’s enlisting other employees to try to badger Kramer to go to his house to “bring him a Coke.” An employer who ignores these types of behaviors rather than investigating and curtailing inappropriate behavior runs the risk of being unable to claim that it acted reasonably to prevent harassment.
Investigations into misconduct are more important than ever. Investigations should be conducted by someone who is trained to conduct them and should focus on getting to the bottom of accusations without retaliating against employees for coming forward. Had the employer here properly investigated the misconduct, it would have likely faced much less of an uphill battle on summary judgment. Instead, the employer failed in almost every way to conduct an adequate investigation, focusing on Kramer’s unrelated pregnancy and pressuring her to resign.
Finally, once violations of policy have been found, employers should take prompt disciplinary action against the violator, even if the behavior will be handled separately as a criminal matter as well by the appropriate authorities.
Kramer v. Wasatch Cnty. Sheriff’s Office, __ F.3d __, 12-4058, 2014 WL 702111 (10th Cir. Feb. 25, 2014).