Harris v. Forklift Systems, Inc.:

The Supreme Court Moves One Step Closer to Establishing a Workable Definition for Hostile Work Environment Sexual Harassment Claims

Introduction

Imagine working in the following environment:⁽¹⁾ You are a woman employed as a manager of a company.⁽²⁾ The company consists of six managers, four of whom are males, and the other two are females.⁽³⁾ Of the two female managers, one is the daughter of the company's president, and the other one is you.⁽⁴⁾

Now imagine that during your employment, the president of the company repeatedly insults you.⁽⁵⁾ He openly questions your intelligence based on your gender;⁽⁶⁾ for example, he often calls you a "dumb-ass woman" in front of other employees, and states that what the company really needs is a man in your position.⁽⁷⁾ Furthermore, imagine the president of your company suggesting that the two of you negotiate your pay raise at a local hotel.⁽⁸⁾ If this behavior is not egregious enough, you also have to endure his humiliating requests to retrieve coins out of his front pant pockets,⁽⁹⁾ as well as endure his insulting claim that eating corn will make your breasts grow larger.⁽¹⁰⁾ Lastly, imagine that while you are negotiating a deal with customers, the company president approaches you and asks if you promised these customers sex in exchange for their business.⁽¹¹⁾

Does the foregoing behavior constitute sexual harassment in the workplace?⁽¹²⁾ If so, must you, the employee, remain at your job until you have suffered psychological injury?⁽¹³⁾ Additionally, which perspective should a court use to judge the sexual harassment?⁽¹⁴⁾ Would a reasonable person⁽¹⁵⁾ consider this sexual harassment, or should the court employ a reasonable woman standard?⁽¹⁶⁾ Depending upon which circuit court a plaintiff files such a case in, the answer to these questions will vary.⁽¹⁷⁾

Much of the controversy and confusion facing the federal circuit courts arose from the 1986 decision Meritor Savings Bank, FSB v. Vinson.⁽¹⁸⁾ In Meritor, the Supreme Court recognized, for the first time, an employee's right to work in an environment free from sex-based, discriminatory conduct which creates a hostile or abusive work environment.⁽¹⁹⁾ The Supreme Court, however, left several fundamental questions unanswered.⁽²⁰⁾ The Court failed to address the issue of whether, in a hostile work environment sexual harassment claim, the proper perspective to be applied is that of a reasonable person, or that of a reasonable woman.⁽²¹⁾ Equally important, the Court failed to indicate whether psychological harm is an element that a plaintiff must prove in order to be successful in a hostile work environment claim.⁽²²⁾

In Harris v. Forklift Systems, Inc.,⁽²³⁾ the Court addressed issues left unresolved by Meritor.⁽²⁴⁾ In Harris, the Supreme Court granted certiorari to resolve the conflict among the federal circuit courts over the issue of whether conduct must affect an employee's psychological well-being to be actionable as an abusive work environment sexual harassment claim.⁽²⁵⁾ The Court decided that psychological harm need not be a factor in order for such a claim to be viable.⁽²⁶⁾

The Supreme Court was also presented with the opportunity to resolve a second area of debate among the circuit courts; namely, what is the appropriate standard by which to judge allegations of sexual harassment?⁽²⁷⁾ The Court briefly, and without elaboration, adopted a modified reasonable person standard,⁽²⁸⁾ but did not expressly reject the reasonable woman standard. Thus, the issue was left somewhat unresolved.⁽²⁹⁾

This Comment will examine the Harris decision.⁽³⁰⁾ In Part II, the history and background⁽³¹⁾ of relevant sexual harassment law will be discussed, focusing on the Sixth Circuit case of Rabidue v. Osceola Refining Co.⁽³²⁾ and the Eleventh Circuit's Ellison v. Brady.⁽³³⁾

Part III contains the statement of the Harris case, its procedural history, and the majority and concurring opinions.⁽³⁴⁾ Part IV analyzes the Harris holding that to be actionable, a sexual harassment claim need not involve psychological harm to the plaintiff.⁽³⁵⁾ Part IV will also explore the Court's use of the modified reasonable person standard and will explore whether the use of this standard was dispositive as to the issue of which gender perspective should be used in such cases.⁽³⁶⁾

History and Background

A. What is Sexual Harassment in the Workplace?

Title VII of the Civil Rights Act of 1964⁽³⁷⁾ (Title VII) has been interpreted by the courts to recognize sexual harassment as a form of discrimination.⁽³⁸⁾ Under Title VII, it is unlawful for an employer to discriminate against any individual concerning "his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."⁽³⁹⁾ While Title VII prohibits discrimination based upon sex, it does not elaborate on the meaning and the scope of this prohibition.⁽⁴⁰⁾

As a result of the virtually non-existent legislative history of Title VII's sex discrimination prohibition, the courts rely upon the Equal Employment Opportunity Commission's Guidelines for direction.⁽⁴¹⁾ The Equal Employment Opportunity Commission published Guidelines on Discrimination Because of Sex (EEOC guidelines),⁽⁴²⁾ a guidebook which defines sexual harassment. According to these guidelines, sexual harassment is the "unwelcome sexual [conduct] . . . [which] unreasonably interfer[es] with an individual's work performance or creat[es] an intimidating, hostile, or offensive working environment."⁽⁴³⁾

There are two forms of sexual harassment which both the EEOC guidelines and the courts recognize: quid pro quo harassment and hostile or abusive work environment harassment.⁽⁴⁴⁾ Quid pro quo harassment involves the conditioning of "concrete employment benefits on sexual favors."⁽⁴⁵⁾ Hostile work environment sexual harassment involves conduct that is sufficiently "severe or pervasive" to alter the conditions of the victim's employment and creates an abusive work environment.⁽⁴⁶⁾ Under an abusive work environment claim, the employee does not allege that he or she has been denied specific benefits.⁽⁴⁷⁾ Instead, the employee asserts that he or she should not have been forced to tolerate abusive working conditions in order to earn a living.⁽⁴⁸⁾

In 1986, in Meritor Savings Bank FSB v. Vinson,⁽⁴⁹⁾ the Supreme Court recognized hostile work environment sexual harassment as a form of sex discrimination actionable under Title VII for the first time.⁽⁵⁰⁾ Meritor involved a claim brought by a female bank employee, Michelle Vinson, against Meritor Savings Bank (Bank) and the Bank's Vice President, Sidney Taylor.⁽⁵¹⁾ Vinson alleged that during her four years of employment, she had been sexually harassed by Taylor in violation of Title VII.⁽⁵²⁾ Vinson testified that Taylor had made repeated demands upon her for sexual favors, usually during working hours.⁽⁵³⁾ Vinson further stated that she initially refused Taylor's sexual advances but, due to fear of losing her job, she acquiesced.⁽⁵⁴⁾ Vinson estimated that during the length of her employment she engaged in sexual intercourse with Taylor between forty and fifty times.⁽⁵⁵⁾ According to Vinson, Taylor fondled her in front of other employees, followed her into the restroom when she was alone, exposed himself to her and even forcibly raped her on several occasions.⁽⁵⁶⁾ Vinson further testified that she neither reported Taylor to his supervisors nor used the Bank's complaint procedure because she was afraid of Taylor.⁽⁵⁷⁾ Both Taylor and the Bank denied Vinson's claim of sexual harassment.⁽⁵⁸⁾

Relying on the EEOC guidelines,⁽⁵⁹⁾ the Supreme Court⁽⁶⁰⁾ held that Congress did not intend to limit Title VII sexual harassment claims to only those claims which relate to "tangible" or "economic" discrimination.⁽⁶¹⁾ The Court held that hostile work environment harassment, like quid pro quo harassment, violated Title VII.⁽⁶²⁾ The Court reasoned that Title VII was enacted "`"to strike at the entire spectrum of disparate treatment of men and women"' in employment,"⁽⁶³⁾ and was not limited to only those claims which caused "`economic' or `tangible' discrimination."⁽⁶⁴⁾ The Court reasoned that a hostile work environment created by sexual harassment "is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality."⁽⁶⁵⁾ Toleration of sexual abuse in exchange for the privilege of being allowed to work and earn a living is as demeaning, according to the Court, as the "`harshest of racial epithets.'"⁽⁶⁶⁾ The Meritor Court further observed that "[o]ne can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers . . . ."⁽⁶⁷⁾

The Supreme Court held that in order for sexual harassment to be actionable under Title VII as a hostile work environment claim, the conduct complained of must be "unwelcomed"⁽⁶⁸⁾ and "sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment.'"⁽⁶⁹⁾ The Court stated that not all workplace harassment would be sufficiently severe or pervasive to violate Title VII.⁽⁷⁰⁾ According to the Court, a "mere utterance" which causes "offensive feelings" would not rise to the level of "sufficiently severe" or "pervasive conduct" which would offend Title VII.⁽⁷¹⁾

B. Meritor Holding Causes Too Much Confusion in the Federal Circuit Courts

1. Rabidue v. Osceola Refining Co.⁽⁷²⁾

The Sixth Circuit, in Rabidue v. Osceola Refining Co.,⁽⁷³⁾ was one of the first circuit courts to apply the test articulated by Meritor⁽⁷⁴⁾ for hostile work environment claims under Title VII.⁽⁷⁵⁾ Vivienne Rabidue, the plaintiff, was employed by Osceola Refining Company for seven years.⁽⁷⁶⁾ She was the only female manager.⁽⁷⁷⁾ During her employment, Rabidue and other female employees were subjected to the male employees' posters of nude or partially nude women.⁽⁷⁸⁾ "One poster . . . showed a prone woman who had a golf ball on her breasts with a man standing over her, golf club in hand, yelling `Fore.'"⁽⁷⁹⁾ Another employee had a desk plaque which read: "`Even male chauvinist pigs need love.'"⁽⁸⁰⁾

Equally important, Rabidue and other female employees were subjected to "anti-female" obscenities by Doug Henry, the supervisor of the computer division.⁽⁸¹⁾ Henry called women in the company "whores," "cunts," "pussies," and "tits."⁽⁸²⁾ With reference to Rabidue, Henry stated that "`[a]ll that bitch needs is a good lay'⁽⁸³⁾ and called her `fat ass.'"⁽⁸⁴⁾

Based on Henry's conduct and the offensive posters, Rabidue filed several complaints with Osceola, on her own behalf and on behalf of other female employees.⁽⁸⁵⁾ "[B]ecause Osceola needed Henry's computer expertise, . . . [it] did not reprimand or fire Henry."⁽⁸⁶⁾ Instead, Osceola unsuccessfully attempted to curb Henry's offensive behavior.⁽⁸⁷⁾ Rabidue was subsequently discharged⁽⁸⁸⁾ and brought this action alleging sexual harassment and sexual discrimination.⁽⁸⁹⁾

In applying the test articulated by Meritor,⁽⁹⁰⁾ the Rabidue court added to the plaintiff's burden by requiring a demonstration of psychological harm resulting from the harassment.⁽⁹¹⁾ The court held that to determine whether the harassing conduct meets Meritor's "altered conditions standard," a plaintiff must prove that the conduct would affect the psychological well-being of a reasonable person under like circumstances.⁽⁹²⁾ Once the plaintiff successfully proves that a reasonable person would be offended by the defendant's conduct, he or she must prove that he or she was actually offended by the defendant's conduct and suffered psychological injury as a result of the hostile work environment.⁽⁹³⁾ The Rabidue decision directed courts to employ a "totality of the circumstances" approach when considering the above factors.⁽⁹⁴⁾ Courts, according to Rabidue, should examine the nature of the harassment, plaintiff's background and experiences, plaintiff's co-workers and supervisors, plaintiff's work area, and the "lexicon of obscenity" existing both before and after plaintiff's "introduction into its environs."⁽⁹⁵⁾

The Sixth Circuit held that because Rabidue had failed to prove that she was the victim of a hostile work environment, Title VII had not been violated.⁽⁹⁶⁾ Applying the reasonable person standard, the majority held that Henry's obscenities, though annoying, were not so startling as to have affected the "psyches" of the plaintiff or other female employees.⁽⁹⁷⁾ The court further held that the sexually explicit posters only had a "de minimis effect" on Rabidue's work environment and, therefore, did not create an offensive work environment.⁽⁹⁸⁾ Relying on the district court's holding, the majority stated the following:

Sexual jokes, sexual conversations and girlie magazines may abound. Title VII was not meant to--or can--change this. It must never be forgotten that Title VII is the federal court mainstay in the struggle for equal employment opportunity for the female workers of America. But it is quite different to claim that Title VII was designed to bring about a magical transformation in the social mores of American workers.⁽⁹⁹⁾

2. Ellison v. Brady:⁽¹⁰⁰⁾ The Eleventh Circuit Rejects Rabidue's Psychological Harm Requirement

The Rabidue decision⁽¹⁰¹⁾ has been severely criticized by both commentators⁽¹⁰²⁾ and courts⁽¹⁰³⁾ for its adoption of the reasonable person standard and its requirement of psychological injury in hostile work environment claims. As a result, many circuit courts have not followed the Rabidue test.⁽¹⁰⁴⁾ In Ellison, the Ninth Circuit adopted a reasonable woman standard, without Rabidue's requirement of psychological harm, as the appropriate test to be applied in determining whether conduct is sufficiently severe or pervasive to create a hostile work environment.⁽¹⁰⁵⁾

The plaintiff in Ellison, Kerry Ellison, was employed as a revenue agent by the Internal Revenue Service (IRS) in San Mateo, California.⁽¹⁰⁶⁾ During her employment, Ellison was repeatedly asked out for dates and sent love letters from her co-worker, Sterling Gray.⁽¹⁰⁷⁾ Ellison, who was frightened and upset by Gray's attention, reported the incidents to Bonnie Miller, who was both Ellison's and Gray's supervisor.⁽¹⁰⁸⁾ Miller discussed the problem with her supervisor, Joe Benton, and had a counseling session with Gray, who was told to refrain from bothering Ellison.⁽¹⁰⁹⁾ Subsequently, Gray was transferred to the San Francisco office.⁽¹¹⁰⁾ Three weeks after Gray's transfer, he requested to be transferred back to the San Mateo office.⁽¹¹¹⁾ The IRS agreed to Gray's request.⁽¹¹²⁾ Miller sent Ellison a letter notifying her that Gray would be returning to the San Mateo office in six months.⁽¹¹³⁾

Upon receiving Miller's letter, Ellison became frantic.⁽¹¹⁴⁾ She filed a formal complaint with the IRS alleging sexual harassment and obtained permission to be transferred upon Gray's return.⁽¹¹⁵⁾ When he returned to the San Mateo office, Gray sent another letter to Ellison conveying a message that he believed that he and Ellison had some type of dating relationship.⁽¹¹⁶⁾

Ellison's complaint was dismissed by the Treasury Department because it determined that the complaint did not describe a pattern or practice of sexual harassment covered by the EEOC's regulations.⁽¹¹⁷⁾ In September 1987, Ellison filed a complaint in the federal district court.⁽¹¹⁸⁾ The district court found that Ellison had failed to state a claim of hostile work environment sexual harassment, and granted the Government's summary judgment motion.⁽¹¹⁹⁾

On appeal, the Ninth Circuit expressly rejected Rabidue's requirement of psychological harm.⁽¹²⁰⁾ The Ellison court stated that neither Title VII nor the Meritor court required a plaintiff to suffer psychological injury.⁽¹²¹⁾ According to the Ellison court, Rabidue had misinterpreted a quote from the Meritor decision⁽¹²²⁾ and incorrectly made psychological harm a requirement.⁽¹²³⁾ The Ellison court held that conduct can unreasonably interfere with an employee's work performance without causing debilitation, and without seriously affecting an employee's psychological well-being.⁽¹²⁴⁾ Employees, according to the decision, should not be required to endure such extreme sexual harassment in order to have a viable cause of action.⁽¹²⁵⁾

The Ellison court also adopted a "reasonable woman" standard to determine whether conduct is sufficiently "persuasive or severe" so as to alter the conditions of employment and create an abusive work environment.⁽¹²⁶⁾ According to Ellison, the reasonable person standard is a "sex-blind . . . standard" that tends to be "male-biased" and ignores the experiences of women.⁽¹²⁷⁾ The reasonable person standard, the court opined, reinforces "prevailing level[s] of discrimination" and allows the harasser to "continue to harass merely because a particular discriminatory practice [is] common" in society.⁽¹²⁸⁾ As a result, the victim of the harassment "would have no remedy."⁽¹²⁹⁾

According to the Ellison court, the reasonable woman standard does not afford greater protection to women than men.⁽¹³⁰⁾ Instead, the court maintained, the reasonable woman standard takes into account that men and women have different perspectives.⁽¹³¹⁾ For example, the court noted, conduct which men may find unobjectionable, may be seen as offensive by a woman.⁽¹³²⁾ A gender-conscious examination of sexual harassment, according to the court, enables women to participate in the workplace equally with men.⁽¹³³⁾ "By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to `run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.'"⁽¹³⁴⁾

Response to the Circuits' Confusion: Harris v. Forklift Systems, Inc.⁽¹³⁵⁾

A. Facts

From April 1985 to October 1987, Teresa Harris was employed as a rental manager by Forklift Systems, Inc., an equipment rental company.⁽¹³⁶⁾ Charles Hardy was the president of Forklift.⁽¹³⁷⁾ Harris alleged that during her employment, Hardy repeatedly insulted her based on her gender, and "made her the target of unwanted sexual innuendos."⁽¹³⁸⁾

According to Harris, on several occasions, Hardy had stated to her: "`[y]ou're a woman, what do you know'" and "`[w]e need a man as the rental manager.'"⁽¹³⁹⁾ Hardy also called Harris "`a dumb ass woman.'"⁽¹⁴⁰⁾ Moreover, when it came time to negotiate pay raises, Hardy recommended that he and Harris go to the Holiday Inn to discuss her raise.⁽¹⁴¹⁾ These comments were usually made in the presence of other company employees.⁽¹⁴²⁾

Harris was not the only employee subjected to Hardy's comments.⁽¹⁴³⁾ Hardy often requested that Harris, as well as other female employees, retrieve coins out of his front pant pockets.⁽¹⁴⁴⁾ Harris testified that "`He would say, Teresa, I have a quarter way down there. Would you get that out of my [front] pocket.'"⁽¹⁴⁵⁾ According to Harris, Hardy threw objects on the ground so that female employees would have to retrieve them.⁽¹⁴⁶⁾ Furthermore, Hardy explicitly suggested to the female personnel the ways in which they could dress in order to expose their breasts.⁽¹⁴⁷⁾

In August, Harris complained to Hardy about his conduct and he apologized and promised to stop.⁽¹⁴⁸⁾ As a result, Harris agreed to remain on the job.⁽¹⁴⁹⁾ However, by September, Hardy's comments had resumed.⁽¹⁵⁰⁾ Hardy approached Harris while she was negotiating a deal with customers and remarked, "`[w]hat did you do, promise the guy . . . some [sex] Saturday night?'"⁽¹⁵¹⁾ Following this incident, Harris resigned and commenced her action against Forklift.⁽¹⁵²⁾

B. Procedure

On July 7, 1989, Harris commenced suit against Forklift in the United States District Court for the Middle District of Tennessee.⁽¹⁵³⁾ Harris alleged that she had been constructively discharged by Forklift because Hardy's conduct had created an abusive work environment,⁽¹⁵⁴⁾ which violated Title VII.⁽¹⁵⁵⁾ Harris sought declaratory and injunctive relief, including back pay and reinstatement.⁽¹⁵⁶⁾ Forklift defended on the grounds that Hardy's statements and actions had only been jokes and had not been taken seriously by other employees.⁽¹⁵⁷⁾

The district court referred the case to Magistrate Kent Sandidge for trial.⁽¹⁵⁸⁾ The Magistrate found this to be "`a close case'"⁽¹⁵⁹⁾ but dismissed Harris's hostile work environment claim.⁽¹⁶⁰⁾ The district court Judge John T. Nixon, in an unpublished opinion, accepted Magistrate Sandidge's findings and recommendation.⁽¹⁶¹⁾ Judge Nixon, relying on Sixth Circuit precedent,⁽¹⁶²⁾ found that Harris was offended by Hardy's comments; however, those comments were not so severe as to cause psychological harm to Harris.⁽¹⁶³⁾ According to Judge Nixon, Hardy's conduct did not "`create[] a working environment so poisoned as to be intimidating or abusive to [Harris].'"⁽¹⁶⁴⁾ The United States Court of Appeals for the Sixth Circuit, in an unpublished opinion, affirmed the district court's ruling.⁽¹⁶⁵⁾

C. The Supreme Court's Decision

The Supreme Court's decision was unanimous and swift.⁽¹⁶⁶⁾ In Harris, the Court was called upon to resolve the conflict among the federal circuits as to what constitutes a hostile or abusive work environment.⁽¹⁶⁷⁾ Specifically, the Court stated that it was granting certiorari in order to resolve the issue of whether psychological harm is a required element of a plaintiff's hostile work environment claim.⁽¹⁶⁸⁾ The Court concluded that it is not.⁽¹⁶⁹⁾

In an opinion delivered by Justice O'Connor, the Court reaffirmed its holding in Meritor Savings Bank, FSB v. Vinson.⁽¹⁷⁰⁾ Relying on Meritor, Justice O'Connor explained that Title VII is not limited to only "economic" or "tangible" discrimination.⁽¹⁷¹⁾ Title VII, according to the Court, was intended to eliminate the entire "disparate" treatment of men and women in the workplace "includ[ing] requiring people to work in a discriminatorily hostile or abusive environment."⁽¹⁷²⁾ According to Justice O'Connor, a workplace "permeated" with "`discriminatory intimidation, ridicule, and insult'" creates a hostile work environment if it is "`sufficiently severe or pervasive to alter the conditions of the victim's employment.'"⁽¹⁷³⁾

Justice O'Connor took a "middle path" approach between making any conduct that is "merely offensive" actionable, and requiring the conduct to create psychological harm to the plaintiff before it is actionable.⁽¹⁷⁴⁾ Justice O'Connor did state that Title VII is not implicated in situations in which "`mere utterance of an . . . epithet which engenders offensive feelings in an employee'" occurs.⁽¹⁷⁵⁾ However, she noted, Title VII would come into play before the harassment leads to a "nervous break-down."⁽¹⁷⁶⁾ A hostile work environment, Justice O'Connor wrote, "detract[s] from employees' job performance, discourage[s] employees from remaining on the job, or keep[s] them from advancing in their careers."⁽¹⁷⁷⁾ Aside from these tangible effects, the Court maintained, Title VII's "broad rule of equality" is offended when employees are subjected to abusive conduct based on their race, gender or religion.⁽¹⁷⁸⁾

As Justice O'Connor explained, Title VII does not require psychological harm as an element of a hostile or abusive work environment claim.⁽¹⁷⁹⁾ According to her, the reference to psychological injury in Meritor was an "egregious example[] of harassment" and did not "mark the boundary of what is actionable."⁽¹⁸⁰⁾ Justice O'Connor expressed concern that factfinders' attention would be needlessly diverted by focusing on psychological harm, an element that Title VII did not require.⁽¹⁸¹⁾ Instead, she noted, if the environment "would reasonably be perceived, and is perceived, as hostile or abusive" then Title VII is violated without a showing of psychological injury.⁽¹⁸²⁾

Justice O'Connor presented a two-part test, containing both an objective and subjective component, to determine whether the environment is hostile or abusive to a plaintiff under Title VII.⁽¹⁸³⁾ First, the conduct must create an objectively hostile work environment--"an environment that a reasonable person would find hostile or abusive."⁽¹⁸⁴⁾ Second, the victim must subjectively perceive the environment to be abusive.⁽¹⁸⁵⁾ Unless both components are met there is no Title VII violation.⁽¹⁸⁶⁾

Justice O'Connor admitted that this was not a "mathematically precise test," and that the Court did not answer all the questions with which it was confronted with regard to determining whether a hostile or abusive work environment exists.⁽¹⁸⁷⁾ Justice O'Connor did, however, state that to determine whether both prongs of the test are met, courts should employ a totality of the circumstances approach.⁽¹⁸⁸⁾ In viewing the totality of a given situation, she maintained, a court should look at "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."⁽¹⁸⁹⁾

According to Justice O'Connor, psychological injury is relevant only to determine whether a plaintiff himself or herself actually found the environment hostile.⁽¹⁹⁰⁾ However, she noted, while psychological harm as well as the other relevant factors may be considered, "no single factor is required" and the list is not exhaustive.⁽¹⁹¹⁾

Because the lower courts had, according to Justice O'Connor, applied the incorrect standard and because the district court found this to be a "close case," the judgment was reversed and the case was remanded.⁽¹⁹²⁾

D. Justice Scalia's Concurring Opinion

While Justice Scalia supported the outcome of Harris, he expressed concerns with the Court's reasoning.⁽¹⁹³⁾ His concerns centered on the Court's determination that the conduct must "`create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive.'"⁽¹⁹⁴⁾ The problem, Justice Scalia maintained, was that the term "abusive," which he perceived to have the same meaning as the word "hostile," was not a clear standard.⁽¹⁹⁵⁾ Furthermore, he wrote, the word "abusive" was not made any clearer "by adding the adverb `objectively' or by appealing to a `reasonable person's' notion of what the vague word means."⁽¹⁹⁶⁾ According to Justice Scalia, the factors listed by the Court to determine abusiveness failed to establish how much of each factor is necessary for a plaintiff to succeed on his or her claim.⁽¹⁹⁷⁾ Justice Scalia further criticized the Court's failure to identify any one factor as determinative.⁽¹⁹⁸⁾ He viewed the Court's holding as allowing unguided juries to determine whether sexually harassing conduct by any employer "is egregious enough to warrant an award of damages."⁽¹⁹⁹⁾

Justice Scalia noted that what constitutes abusiveness is no clearer or more certain than what constitutes negligence.⁽²⁰⁰⁾ At least, under a theory of negligence, Justice Scalia maintained, recovery is limited to those plaintiffs who have suffered actual harm.⁽²⁰¹⁾ Whereas, he noted, a plaintiff seeking to recover under Title VII's abusiveness test does not have to demonstrate that any harm had been suffered.⁽²⁰²⁾ A plaintiff need only prove that the environment was hostile to show that Title VII has been violated.⁽²⁰³⁾ According to Justice Scalia, such a vague standard, left unchecked by a requirement that the plaintiff demonstrate that she actually suffered harm, would open "expansive vistas of litigation."⁽²⁰⁴⁾

Justice Scalia suggested that the Court adopt as an absolute test whether conduct unreasonably interferes with an employee's work performance.⁽²⁰⁵⁾ By adopting this test, Justice Scalia maintained, both juries and employers would be provided with greater guidance.⁽²⁰⁶⁾ But in view of the broad and expansive wording of Title VII, Justice Scalia reluctantly admitted that there was no basis for such a limitation to the statute.⁽²⁰⁷⁾ As a result, he conceded, "I know of no test more faithful to the inherently vague statutory language than the one the Court today adopts."⁽²⁰⁸⁾ Accordingly, Justice Scalia joined the majority opinion of the Court.⁽²⁰⁹⁾

E. Justice Ginsburg's Concurring Opinion

In a separate concurrence, Justice Ginsburg took a different approach.⁽²¹⁰⁾ Unlike Justice Scalia, Justice Ginsburg stressed that her concerns and criticisms did not lie with Title VII's language nor with the Court's interpretation of the phrase "hostile work environment."⁽²¹¹⁾ Instead, the critical issue for her was "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed."⁽²¹²⁾ Borrowing from race discrimination cases, Justice Ginsburg argued that the factfinder's "inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff's work performance."⁽²¹³⁾ According to Justice Ginsburg, "`the plaintiff need not prove that . . . her [work] productivity . . . declined as a result of the harassment.'"⁽²¹⁴⁾ It is enough, she maintained, that a plaintiff prove that a reasonable person would find that the harassment made it difficult to perform one's job.⁽²¹⁵⁾ The adjudicator, Justice Ginsburg claimed, should focus "dominantly" on this one factor.⁽²¹⁶⁾ Though Justice Ginsburg's reasoning differed from that of the Court, she did join the Court's decision because it was in "harmony" with her views.⁽²¹⁷⁾

Analysis

The Harris decision is significant for two reasons. First, it clearly and correctly resolves the debate in the circuit courts over whether a plaintiff must prove psychological harm under Title VII hostile work environment claims.⁽²¹⁸⁾ The Harris Court concluded that psychological harm need not be a factor in such a claim.⁽²¹⁹⁾ Second, the Harris Court had the opportunity to decide the appropriate standard to apply in judging sexual harassment allegations.⁽²²⁰⁾ The Harris Court briefly and without elaboration settled on a modified reasonable person standard.⁽²²¹⁾ However, in adopting this as the appropriate standard, the Harris Court failed to acknowledge the split among the circuit courts over which standard to apply, and never expressly rejected the reasonable woman standard.⁽²²²⁾ As a result, the issue is unresolved as to whether and under which circumstances the reasonable woman standard should be used.⁽²²³⁾

A. The Supreme Court Eliminated Rabidue's Requirement of Psychological Harm

In holding that Meritor's abusiveness standard does not require a plaintiff to prove psychological harm, the Harris Court adopted the reasoning advanced by the Eleventh Circuit⁽²²⁴⁾ in Ellison v. Brady.⁽²²⁵⁾ In Ellison, the court had held that Rabidue had misinterpreted the Meritor Court's reference to psychological injury.⁽²²⁶⁾ The Meritor Court, according to Ellison, had merely used psychological harm as an example of the possible result of the harassment, and not as an element that a plaintiff must prove.⁽²²⁷⁾ The Harris Court agreed that psychological harm was meant as an example.⁽²²⁸⁾

The EEOC guidelines do not require a plaintiff to prove that the sexual harassment complained of resulted in psychological injury.⁽²²⁹⁾ Instead, the EEOC guidelines have been interpreted to find a hostile work environment if an employer engages in a pattern of objectionable conduct which interferes with a reasonable person's job performance.⁽²³⁰⁾

By eliminating Rabidue's psychological harm requirement, the Harris Court reaffirmed Title VII's purpose of eradicating employment discrimination in the workplace.⁽²³¹⁾ Title VII's primary objective is to achieve equality in the workplace by removing barriers that have operated in the past to favor a preferred group of employees.⁽²³²⁾ Title VII has a "prophylactic objective," which imposes an affirmative duty on employers to take steps to ensure that employees are not subjected to sexual harassment.⁽²³³⁾ Therefore, Title VII's protections attach before the sexual harassment occurs and before a victim suffers psychological harm.⁽²³⁴⁾ Rabidue's serious psychological harm requirement is inconsistent with Title VII's prophylactic objective.⁽²³⁵⁾ Rabidue would require victims of sexual harassment to stay at their place of employment until psychological harm arises.⁽²³⁶⁾ In Harris, Justice O'Connor noted that Title VII attaches before a plaintiff suffers a nervous break-down.⁽²³⁷⁾

Equally important, Rabidue's psychological requirement frustrated Title VII's prophylactic objective by eliminating the need for employers to have to eradicate sexual harassment from the workplace.⁽²³⁸⁾ That is, under Rabidue standards, if a harassed woman chose to remain in an abusive work environment, her employer would not have to respond to the harassment until she experienced psychological injury.⁽²³⁹⁾ Research has shown that those most likely to suffer psychological harm are most likely to do so in silence and are least likely to complain.⁽²⁴⁰⁾ If a woman, on the other hand, chose to leave the environment to avoid the abusive conduct, under the Rabidue standards, the employer would be immune from complying with Title VII's prophylactic objective altogether.⁽²⁴¹⁾ In this type of situation, the woman would also have been barred from Title VII relief had she not suffered debilitating psychological injury.⁽²⁴²⁾

Furthermore, the requirement that a plaintiff suffer psychological harm would make it more difficult for an employer to recognize and eradicate sexual harassment in the workplace.⁽²⁴³⁾ Not all people react in the same manner to sexual harassment.⁽²⁴⁴⁾ There are various coping mechanisms to deal with sexual harassment, including toleration, remaining silent, and challenging the harassment.⁽²⁴⁵⁾ Determining liability based on the responses of the victims would lead to inconsistent and illogical results, and would make it difficult for an employer to eliminate the harassment.⁽²⁴⁶⁾

Lastly, Rabidue's requirement of psychological harm confuses the issue of liability with the measurement of damages.⁽²⁴⁷⁾ In discrimination cases, "proof of the extent of the injury is a prerequisite to a determination of damages in discrimination cases, [but] it is not a prerequisite to finding liability."⁽²⁴⁸⁾ An employee who seeks compensatory damages must show the extent of his or her injuries in order "to establish the amount of damages before liability is determined."⁽²⁴⁹⁾ Psychological injury is irrelevant to a determination of liability.⁽²⁵⁰⁾ In essence, the Rabidue Court placed "the cart before the horse" by requiring a plaintiff to prove damages before liability is determined.⁽²⁵¹⁾

Justice O'Connor properly recognized that sexual harassment need not cause psychological harm to be actionable.⁽²⁵²⁾ By eliminating psychological harm as a requirement, the Harris Court moved in line with other Title VII claims, which do not require psychological injury.⁽²⁵³⁾ Psychological harm is not required in discharge cases under Title VII,⁽²⁵⁴⁾ nor is it required in disparate impact cases.⁽²⁵⁵⁾ Similarly, claims for harassment in race,⁽²⁵⁶⁾ religion,⁽²⁵⁷⁾ and national origin⁽²⁵⁸⁾ cases do not require the plaintiff to prove the consequences of the discrimination.

B. The Supreme Court Adopts a Modified Reasonable Person Standard to Judge Hostile Work Environment Sexual Harassment

The Harris Court briefly, and without elaboration, adopted a modified reasonable person standard.⁽²⁵⁹⁾ The modified reasonable person standard contains both an objective and a subjective component.⁽²⁶⁰⁾ Under this dual standard, the conduct must first create an objectively hostile work environment--an environment that a reasonable person would find hostile.⁽²⁶¹⁾ Second, the victim must subjectively perceive the environment to be abusive.⁽²⁶²⁾ Both components must be met in order for Title VII to be violated.⁽²⁶³⁾

Under a dual standard approach, each component serves an important function.⁽²⁶⁴⁾ The objective factor places an important limitation on sexual harassment.⁽²⁶⁵⁾ It is under the objective prong that the finder of fact must actually determine whether the work environment is hostile.⁽²⁶⁶⁾ This objective standard allows the factfinder to evaluate the work environment and the instances of harassment against a reasonableness standard.⁽²⁶⁷⁾ The reasonableness of the objective component serves as a safeguard against the "supersensitive `eggshell' plaintiff [by] requiring the fact-finder to determine whether the work environment is actually so hostile that it `would have interfered with a reasonable individual's work performance . . . .'"⁽²⁶⁸⁾

The subjective factor, the second component, likewise serves a vital function.⁽²⁶⁹⁾ It accounts for the perceptions of the particular victim.⁽²⁷⁰⁾ The subjective factor "is crucial because it demonstrates that the alleged conduct injured this particular plaintiff giving her a claim for judicial relief."⁽²⁷¹⁾ It "permits a court to give proper weight to the employee's injury . . . [and acknowledges] the different ways in which [an employee] initially responds to or copes with harassment."⁽²⁷²⁾ The victim, therefore, is able to introduce into evidence her "feelings, reactions, injuries, and other relevant personal evidence."⁽²⁷³⁾

Under a traditional reasonable person analysis, the victim's feelings are not necessarily taken into account.⁽²⁷⁴⁾ The factfinder would examine only the perceptions of a reasonable person.⁽²⁷⁵⁾ By adding this subjective prong, the plaintiff is aided "by causing persuasive evidence to become more directly relevant," thereby further legitimizing her claim.⁽²⁷⁶⁾

A criticism of the modified reasonable person standard is that, because it requires "plaintiffs to jump through `double hoops,'" it might thwart legitimate claims.⁽²⁷⁷⁾ In reality, however, the modified reasonable person standard is no more difficult a standard to meet than the traditional standard.⁽²⁷⁸⁾ That is, under a traditional reasonable person standard, a plaintiff had to prove that a reasonable person standing in the plaintiff's shoes would have been offended by the conduct.⁽²⁷⁹⁾ Under a modified reasonable person test, the plaintiff is still required to prove this element.⁽²⁸⁰⁾ The only difference between a traditional reasonable person standard and a modified reasonable person standard is that under the latter, a plaintiff must prove that he or she found the environment hostile.⁽²⁸¹⁾

The addition of the subjective component does not place a greater burden on the plaintiff.⁽²⁸²⁾ In fact, the subjective prong is easily met and can help the plaintiff establish the objective prong of the test.⁽²⁸³⁾ That is, a plaintiff herself will testify as to whether she perceived the environment as hostile.⁽²⁸⁴⁾ "The likely effect is that evidence which shows that the particular plaintiff was offended will positively affect the jury's determination of whether both a reasonable person as well as a particular plaintiff were offended."⁽²⁸⁵⁾ A defendant will be hard-pressed to rebut this testimony and, in all likelihood, will only be able to do so if there is evidence that the plaintiff had stated in the past that he or she was not, in fact, offended, or, if the plaintiff had stated that his or her work environment had not been affected by the defendant's conduct.⁽²⁸⁶⁾

C. Is the Reasonable Woman Standard Still Viable in the Federal Circuit Courts After Harris v. Forklift Systems, Inc.?

The most interesting question raised by the Harris decision is whether the reasonable woman standard is still viable.⁽²⁸⁷⁾ In adopting a modified reasonable person standard, the Harris Court failed to properly address the split among the federal circuit courts over which standard to apply.⁽²⁸⁸⁾ Similarly, the Harris Court did not explain why it was adopting a modified reasonable person standard instead of adopting a reasonable woman standard.⁽²⁸⁹⁾ Moreover, the Court explicitly stated that it was granting certiorari only to decide the issue of whether psychological harm was a required element of the plaintiff's hostile work environment claim.⁽²⁹⁰⁾ For the above reasons, uncertainty has arisen over whether the issue has actually been resolved.⁽²⁹¹⁾

Some commentators have asserted that Harris both resolves the conflict over psychological injury,⁽²⁹²⁾ and establishes the modified reasonable person standard as the appropriate test to be applied.⁽²⁹³⁾ Other commentators argue that Harris leaves the question of which standard is the appropriate one, unanswered.⁽²⁹⁴⁾ Courts too have reached conflicting results regarding whether Harris adopted a modified reasonable person standard or whether Harris left the issue unresolved.⁽²⁹⁵⁾

Until the Supreme Court says more, Harris should be interpreted as "having no consequence for the debate over importing gender into the reasonableness standard."⁽²⁹⁶⁾ An issue of such importance should not be resolved by mere implication. As a result, Harris should be read narrowly as resolving only the issue it explicitly stated it was resolving: the issue of psychological harm.⁽²⁹⁷⁾ To read Harris narrowly does "no violence" to its otherwise valid holding.⁽²⁹⁸⁾

Conclusion

"Sexual harassment has become an epidemic in the 1990s that presents a plethora of economic, social, and personal problems for employees, families, and businesses."⁽²⁹⁹⁾ Studies reveal that between one-third and one-half of all working women have been sexually harassed at the workplace during their careers.⁽³⁰⁰⁾ The proportion is even higher for women employed in jobs traditionally held by men.⁽³⁰¹⁾

The effects of sexual harassment for both employees and employers are profound. Victims of sexual harassment experience feelings of fear, anxiety and loss of confidence.⁽³⁰²⁾ They frequently change jobs and have higher rates of absenteeism.⁽³⁰³⁾ In the end, these costs are borne by the employer.⁽³⁰⁴⁾ A 1988 study revealed that the United States Government (as employer) spent a staggering $267 million during a two-year period for costs attributed to sexual harassment.⁽³⁰⁵⁾

The Supreme Court moved one step closer to answering what constitutes hostile work environment sexual harassment by eliminating psychological harm as a requirement which a plaintiff must prove. However, the Supreme Court resolved only one of the many issues left unanswered by Meritor, and challenged lower courts and employers to fill in the gaps. As a result, courts and employers are again left with vague standards with which to work. For women to be truly equal in the workplace, it is imperative that the Supreme Court set a clear standard for courts and employers to follow. The test must not be done piecemeal.

Kerry A. Colson^*

1. The following hypothetical is based on the case Harris v. Forklift Sys., Inc., 114 S. Ct. 367, 369-70 (1993). See infra part III.A for a discussion of the facts of Harris.

2. See Harris, 114 S. Ct. at 369.

3. See Brief for Petitioner at 3, Harris v. Forklift Sys., Inc., 114 S. Ct. 367 (1993) (No. 92-1168).

4. See id.

5. See Harris, 114 S. Ct. at 369.

6. See id.

7. See id.

8. See id.

9. See id.

10. See Brief for Petitioner at 5, Harris (No. 92-1168).

11. See Harris, 114 S. Ct. at 369.

12. Sexual harassment has been defined as "the unwanted imposition of sexual requirements in the context of a relationship of unequal power." Catherine A. MacKinnon, Sexual Harassment of Working Women 1 (1979). According to MacKinnon, sexual harassment occurs when a person in a position of power imposes sexual demands or pressures on an unwilling and less powerful person. Id. at 9-10. Other commentators have defined sexual harassment differently. See Susan E. Martin, Sexual Harassment: The Link Joining Gender Stratification, Sexuality, and Women's Economic Status, in Women: A Feminist Perspective 22, 23 (Jo Freeman ed., 5th ed. 1995). One commentator has defined sexual harassment as "`unsolicited, nonreciprocal male behavior that asserts a woman's sex role over her functioning as a worker.'" Id. (quoting Lin Farley, Sexual Shakedown: The Sexual Harassment of Women on the Job 14-15 (1978)). Sexual harassment has also been defined as "`an attempt to coerce an unwilling person into a sexual relationship, to subject a person to unwanted attention or to punish a refusal to comply.'" Id. (quoting Phyllis Crocker, An Analysis of University Definitions of Sexual Harassment, 8 Signs 698 (1983)).

Sexual harassment is not limited to the harassment of women by men, but can encompass harassment of men by women. See Note, Sexual Harassment Claims of Abusive Work Environment Under Title VII, 97 Harv. L. Rev. 1449, 1449 n.1 (1984) [hereinafter Abusive Work Environment]; Lawrence Solotoff & Henry S. Kramer, Sex Discrimination and Sexual Harassment in the Work Place § 1.03, at 1-7 (1994).

Because women experience sexual harassment more frequently than do men, this Comment will use the phrase "sexual harassment" to describe only the harassment that women experience at the hands of men. Kara Swisher, Laying Down the Law on Harassment: Court Ruling Spurs Firms to Take Preventative Track, The Wash. Post, Feb. 6, 1994, at H-1. In 1980, the United States Merit Systems Protection Board conducted the first broad-scale study of sexual harassment; the federal government surveyed approximately 23,000 federal employees. Alba Conte, Sexual Harassment in the Workplace: Law and Practice § 1.1 & n.1 (1990) (citing United States Merit Systems Protection Board, Sexual Harassment in the Federal Workplace--Is it a Problem? (1981)). The study revealed that 42% of all women and 15% of all men reported experiencing some form of sexual harassment. Id. Even though this study was undertaken in the late 1980s, it is still considered as providing the fullest and most reliable picture of sexual harassment in the workplace to date. Martin, supra, at 12.

13. Circuit courts have disagreed as to whether a plaintiff in a hostile work environment sexual harassment claim must necessarily prove that she suffered psychological harm. For instance, the Sixth, Seventh, and Eleventh Circuits require a plaintiff to suffer psychological injury. See Brooms v. Regal Tube Co., 881 F.2d 412, 418-20 (7th Cir. 1989); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1561 (11th Cir. 1987); Scott v. Sears & Roebuck, 798 F.2d 210 (7th Cir. 1986); Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986), cert. denied, 481 U.S. 1041 (1987). See infra part II.B.1 for a discussion of Rabidue. The Third, Eighth, and Ninth Circuits, on the other hand, do not require a plaintiff to prove psychological injury. See Burns v. McGregor Elecs. Indus., Inc., 955 F.2d 559 (8th Cir. 1992); Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991); Andrews v. City of Philadelphia, 895 F.2d 1469, 1482-83 (3d Cir. 1987). See infra part II.B.2 for a discussion of Ellison.

14. See infra notes 15-17 and accompanying text.

15. The reasonable person standard replaced the traditional tort-based reasonable man standard, which courts found to be gender-biased because it only took into account the perceptions of men. Leah R. McCaslin, Note, Harris v. Forklift Systems, Inc.: Defining the Plaintiff's Burden in Hostile Environment Sexual Harassment Claims, 29 Tulsa L.J. 761, 772 (1994). The reasonable person standard is perceived as being gender-neutral because it takes into account both female and male perceptions. Id. Critics argue, however, "that the `reasonable person' is gender-neutral in name only, in that the actual concept has not evolved along with the terminology." Jolynn Childers, Note, Is There a Place for a Reasonable Woman in the Law? A Discussion of Recent Developments in Hostile Environment Sexual Harassment, 42 Duke L.J. 854, 856 n.7 (1993). Though some critics point to both the flaws and possible negative connotations inherent in the reasonable woman standard, they believe that the reasonable person standard does not necessarily take into account women's perceptions. Id. at 856.

16. The reasonable woman standard (sometimes referred to as "the reasonable victim standard") has been used by those courts that are dissatisfied with the gender-biased reasonable person standard. Childers, Note, supra note 15, at 856-57. The "reasonable woman" has been described "as a woman with reasonable expectations concerning what is appropriate and inappropriate, what is fair and unfair. The reasonable woman attempts to encompass that which is fair, proper, just, and suitable under the circumstances, while taking into consideration a backdrop of female life experiences." Bonnie B. Westman, Note, The Reasonable Woman Standard: Preventing Sexual Harassment in the Workplace, 796 Wm. Mitchell L. Rev. 795, 819 (1992). Courts that have adopted the reasonable woman standard recognize that the reasonable person standard "tends to ignore the experiences of women." Ellison, 924 F.2d at 879; see also infra notes 126-34. Proponents also argue that "the failure to acknowledge judicially both the differences between men and women and the reasons for those differences will prevent women from receiving protection under Title VII." Childers, Note, supra note 15, at 856. Critics of the reasonable woman standard, on the other hand, argue that it fails to define exactly who the reasonable woman is, that it excludes men as a class from being victims of sexual harassment, and that it reinforces the belief that women's experiences and reactions are unique to women and are not a normal human response. Id. at 888-902.

17. Several circuit courts and a number of state courts have adopted the reasonable woman standard as the appropriate standard for judging allegations of sexual harassment. See Ellison v. Brady, 924 F.2d 872, 880 (9th Cir. 1991); Yates v. Avco Corp., 819 F.2d 630, 637 (6th Cir. 1987); Jenson v. Eveleth Taconite Co., 139 F.R.D. 657, 665 (D. Minn. 1991); Carrillo v. Ward, 770 F. Supp. 815, 822 (S.D.N.Y. 1991); Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1524 (M.D. Fla. 1991); Austen v. Hawaii, 756 F. Supp. 612, 628 (D. Haw. 1991); Barbetta v. Chemlawn Servs. Corp., 669 F. Supp. 569, 572 (W.D.N.Y. 1987). See infra part II.B.2 for a discussion of Ellison.

Other circuit courts have adopted the reasonable person standard as the appropriate standard. See Morgan v. Massachusetts Gen. Hosp., 901 F.2d 186, 192-93 (1st Cir. 1990); Brooms v. Regal Tube Co., 881 F.2d 412, 419 (7th Cir. 1989); Bennett v. Corroon & Black Corp., 845 F.2d 104, 106 (5th Cir. 1988), cert. denied, 489 U.S. 1020 (1989); Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1986), cert. denied, 481 U.S. 1041 (1987). See infra part II.B.1 for a discussion of Rabidue.

18. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986); see also infra notes 49-71 and accompanying text.

19. Meritor, 477 U.S. at 64-67. There are two sexual harassment theories under which a plaintiff may sue: quid pro quo and hostile work environment. Conte, supra note 12, § 2.2.

[Quid pro quo harassment] is the most obvious type of harassment; it involves the exchange of employment benefits by a supervisor or employer for sexual favors from a subordinate employee. The second form [of harassment] consists of conduct that rises to the level of a hostile or offensive working environment. In this type of case, no deal is sought or struck; the day-to-day working environment has been polluted with verbal or physical abuses. The two types of harassment are often intertwined. Failure to comply with sexual demands may give rise to a hostile environment as well as quid pro quo harassment claim, and a hostile environment may affect an employee's job status if she is fired for complaining or if it causes her constructive discharge. To be actionable, sexual harassment must be unwelcome. Although both types of harassment violate Title VII and both are often alleged in sexual harassment complaints, each contains unique elements.

Quid pro quo harassment typically involves a situation in which a supervisor demands sexual consideration in exchange for employment benefits. A tangible economic loss may include termination, transfer, delay or denial of job benefits, or adverse performance appraisals, and may occur in one of several ways: benefits may be withheld from an employee until she submits to sexual demands, an employer or supervisor may retaliate against an employee who has refused sexual advances by firing her or altering or withholding tangible job benefits, or an employee may submit to the advance and still not receive the job benefit. Applicants for employment also have been refused work for failing to acquiesce to sexual demands.

. . . Hostile environment claims challenge workplace practices, rather than tangible job benefits, and consist of "verbal or physical conduct of a sexual nature" that unreasonably interferes with one's work or creates an "intimidating, hostile, or offensive working environment." This type of harassment is both more pervasive and more elusive. While quid pro quo sexual harassment can only be committed by someone with authority to change the employee's job status, employers, supervisors, coworkers, customers, or clients can create a hostile work environment.Id. (footnotes omitted).

This Comment will focus primarily on hostile work environment sexual harassment. See infra text accompanying notes 41-48.

20. McCaslin, Note, supra note 15, at 767.

21. See Colleen M. Davenport, Note, Sexual Harassment Under Title VII: Equality in the Workplace or Second-Class Status?: Meritor Savings Bank, FSB v. Vinson, 10 Hamline L. Rev. 193, 216 (1987); Suzanne Egan, Note, Meritor Savings Bank v. Vinson: Title VII Liability for Sexual Harassment, 17 Golden Gate U. L. Rev. 379 (1987); Catherine M. Mogan, Note, Current Hostile Environment Sexual Harassment Law: Time to Stop Defendants from Having Their Cake and Eating it Too, 6 Notre Dame J.L. Ethics & Pub. Pol'y 543, 550 (1992).

22. See generally Davenport, Note, supra note 21; Egan, Note, supra note 21; Mogan, Note, supra note 21.

23. Harris v. Forklift Sys., Inc., 114 S. Ct. 367 (1993).

24. Id. at 370-71. See infra notes 49-71 and accompanying text.

25. Harris, 114 S. Ct. at 370.

26. Id. at 371; see also infra part IV.A. Neither the plaintiff nor the defendant in Harris advocated that the Supreme Court adopt psychological harm as a required element of hostile environment sexual harassment claims. See Brief for Petitioner at 12-26, Harris (No. 92-1168).

27. Harris, 114 S. Ct. at 370.

28. Id.; see also infra part IV.B.

29. The Supreme Court, 1993 Term--Leading Cases, 108 Harv. L. Rev. 139, 322 (1993) [hereinafter Leading Cases]; see also infra part IV.C.

30. See infra parts III-IV.

31. See infra part II.B.2.

32. Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986); see also infra part II.B.1.

33. Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991); see also infra part II.B.2.

34. See infra part III.

35. See infra part IV.

36. See infra parts IV.B-C.

37. 42 U.S.C. §§ 2000e-2000e-17 (1988).

38. 42 U.S.C. § 2000e-2(a)(1) (1988). While Title VII's sex discrimination prohibition has been interpreted to recognize sexual harassment as a form of discrimination, Title VII itself contains no such explicit provision. See 42 U.S.C. § 2000e- 2(a)(1). That is, by its terms, Title VII does not include a provision prohibiting sexual harassment. See 42 U.S.C. § 2000e-2(a)(1). However, courts have determined that sexual harassment does, in fact, constitute sex discrimination. See Downes v. Federal Aviation Admin., 775 F.2d 288, 290 (Fed. Cir. 1985); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977).

39. 42 U.S.C. § 2000e-2(a)(1). Title VII states in part:

It shall be an unlawful employment practice for an employer--(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .Id. Title VII applies to businesses with fifteen or more employees. Id. § 2000e(b) (1988).

40. 42 U.S.C. §§ 2000e-2000e-17 (1988). Congress added the prohibition against sex discrimination in the "eleventh hour." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63 (1986) (citing 110 Cong. Rec. 117152 (daily ed. Feb. 8, 1964)). The opposition argued that "`sex discrimination' was sufficiently different from other types of discrimination that it ought to receive separate legislative treatment." Id. at 64. While the bill did pass, there is little legislative history to guide the courts due to the intensity of the opposition. Id.

41. Meritor, 477 U.S. at 65. The Equal Employment Opportunity Commission (EEOC) is a bipartisan commission that was created by Congress to administer and enforce discrimination claims under Title VII. Conte, supra note 12, § 5.16. The EEOC has the authority to investigate allegations of discriminations, to attempt reconciliation, and to bring suit on behalf of plaintiffs. Id. § 5.17. While Title VII suits may be brought by either private individuals or by the EEOC, see 42 U.S.C. §§ 2000e-5 to 2000e-6, generally a private individual must file a complaint with the EEOC prior to initiating a suit in federal court. Conte, supra note 12, § 5.17. Subsequent to filing with the EEOC, if the plaintiff wishes to continue to pursue the claim in federal court and has met the EEOC's procedural requirements, a "right to sue" letter is issued by the EEOC. Id.

42. 29 C.F.R. § 1604.11 (1991). While the EEOC guidelines are not law, courts have relied upon them to resolve issues of sexual harassment. Meritor, 477 U.S. at 65 (quoting General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42 (1976) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944))).

43. 29 C.F.R. § 1604.11(a) (1991). The EEOC guidelines define sexual harassment as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.Id; see also Mass. Gen. L. ch. 151B, § 1 (1988), which defines sexual harassment as:

Sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.Mass. Gen. L. ch. 151B, § 1 (1988).

44. See supra notes 19, 42; see also infra note 45. Quid pro quo violations are covered under subsections (1) and (2) of 29 C.F.R. § 1604.11(a) (1991). For a brief discussion of quid pro quo sexual harassment, see supra note 19. Hostile work environment violations are covered under subsection (3) of 29 C.F.R. § 1604.11(a) (1991).

45. Meritor, 477 U.S. at 62. The statement, "you will get a promotion if you sleep with me," is an example of quid pro quo harassment. Childers, Note, supra note 15, at 858. Courts have been more receptive to plaintiffs who bring quid pro quo sexual harassment claims because these incidents usually result in economic or tangible harm to the victim. Id. A "tangible" or "economic" harm may be, for example, termination of employment, transfer from one position or location to another, denial of job benefits, or adverse performance reviews. Westman, Note, supra note 16, at 800.

46. 29 C.F.R. § 1604.11(a)(2) (1991); see also supra note 41. The EEOC guidelines use the disjunctive "or" in its hostile work environment harassment definition. Id. In Meritor, the Supreme Court substituted "and" in place of the disjunctive "or" without explanation, thereby requiring the plaintiff to prove both unreasonable interference with work and abusive environment. Meritor, 477 U.S. at 65-67. "For sexual harassment to be actionable, it must be sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment.'" Id. at 67 (alteration in orginal) (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)); see also infra note 66 and accompanying text.

47. Abusive Work Environment, supra note 12, at 1455-56.

48. Id.

49. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).

50. The first federal courts to decide sexual harassment claims under Title VII rejected sexual harassment as a form of sex discrimination. These courts reasoned that sexual harassment was merely a personal matter; one that was not solely gender-based, because an employer, they reasoned, could harass employees of both sexes, and the recognition of sexual harassment as a valid form of discrimination would cause an increase in litigation. See Tompkins v. Public Serv. Elec. & Gas Co., 422 F. Supp. 553 (D.N.J. 1976); Miller v. Bank of Am., 418 F. Supp. 233 (N.D. Cal. 1976); Corne v. Bausch and Lomb, Inc., 390 F. Supp 161 (D. Ariz. 1975); Barnes v. Train, No. 1828-73, 1974 WL 10628 (D.D.C. Aug. 9, 1974). It was not until April of 1976 that the court recognized sexual harassment as a legitimate cause of action under Title VII. See Williams v. Bell, 587 F.2d 1240 (D.C. Cir. 1978); William v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976).

51. Meritor, 477 U.S. at 60.

52. Id.

53. Id.

54. Id.

55. Id.

56. Meritor, 477 U.S. at 60.

57. Id. at 61.

58. Id. Taylor claimed that Vinson had fabricated her claim due to an ongoing labor dispute. Id. The Bank denied having had any knowledge of the sexual harassment and denied having approved of it. Id.

59. See supra notes 41-46 and accompanying text.

60. Justice Rehnquist delivered the opinion of the Court and was joined by Chief Justice Burger, and Justices White, Powell, and O'Connor. Meritor, 477 U.S. at 58. Concurring opinions were written by Justices Stevens and Marshall. Id. at 73-78. (Stevens, J., concurring; Marshall, J., concurring).

61. Id. at 64 (quoting Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 (1978) (quoting Sprogis v. United Airlines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971), cert. denied, 404 U.S. 991 (1972))).

62. Id. at 65.

63. Id. at 64. (quoting Manhart, 435 U.S. at 707 n.13 (quoting Sprogis, 444 F.2d at 1198)).

64. Id.

65. Meritor, 477 U.S. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982)).

66. Id. (quoting Henson, 682 F.2d at 902).

67. Id. at 66 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972)). It is this quote that has lead later courts to conclude that a plaintiff must prove psychological injury as part of her burden. See supra note 13.

68. Id. at 68. Conduct is considered "unwelcomed" if an employee "did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive." Henson, 682 F.2d at 903. The rationale for this requirement is to distinguish between consensual conduct and conduct which is unwelcomed and potentially actionable. Meritor, 477 U.S. at 68.

69. Meritor, 477 U.S. at 67 (alteration in original) (quoting Henson, 682 F.2d at 904).

70. Id.

71. Id. (quoting Rogers 454 F.2d at 238).

72. Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986). In Harris, both the District Court and Appellate Court followed the Sixth Circuit precedent of Rabidue which requires a plaintiff to prove psychological harm. See infra notes 159-65 and accompanying text.

73. Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986).

74. See supra notes 49-71 and accompanying text.

75. Rabidue, 805 F.2d at 619-22.

76. Id. at 623 (Keith, J., dissenting). It is interesting to note that the crucial facts of this case are found in the dissenting opinion written by Justice Keith. Id. at 623-24 (Keith, J., dissenting). According to Justice Keith, the majority opinion was more concerned with the conduct of Rabidue (the victim), stating that her supervisors and coworkers thought her to be "abrasive, rude, antagonistic, extremely willful, uncooperative, and irascible," id. at 615, instead of focusing on the harassing conduct. Id. at 624 (Keith, J., dissenting). The Rabidue decision is "`[p]erhaps the most well-known example of a case where a court took a "boys-will-be-boys" attitude regarding what constitutes actionable hostility in connection with merely verbally explicit comments . . . .'" Maureen Roy, Comment, Employer Liability for Sexual Harassment: A Search for Standards in the Wake of Harris v. Forklift Sys., Inc., 48 SMU L. Rev. 263, 283 n.120 (alteration in original) (omission in original) (citing Peter M. Panken et al., Sexual Harassment in the Workplace: Employer Liability for the Sins of the Wicked, C669 ALI-ABA 221, 254 (1991)).

77. Rabidue, 805 F.2d at 623 (Keith, J., dissenting).

78. Id. at 623-24 (Keith, J., dissenting).

79. Id. at 624 (Keith, J., dissenting).

80. Id. (Keith, J., dissenting).

81. Id. (Keith, J., dissenting).

82. Rabidue, 805 F.2d at 624 (Keith, J., dissenting).

83. Id. (Keith, J., dissenting).

84. Id. (Keith, J., dissenting).

85. Id. (Keith, J., dissenting).

86. Id. (Keith, J., dissenting).

87. Rabidue, 805 F.2d at 615. In response to Rabidue's complaints, Charles Shoemaker, the vice-president of Osceola, spoke to Henry and gave him "`a little fatherly advice' about Henry's prospects if he learned to become `an executive type person.'" Id. at 624 (Keith, J., dissenting).

88. Id. at 615. Shortly prior to her termination, Rabidue engaged in a heated argument with Shoemaker concerning accounting policies and procedures, and a subsequent "vitriolic confrontation" ensued with the vice-president of one of the company's major customers regarding pricing schedules that existed between the two companies. Id. Shoemaker was embarrassed by the incident with the other company's officer and discharged Rabidue shortly thereafter. Id.

89. Id. at 614. Rabidue first filed charges with the EEOC and thereafter commenced the action in district court. Id. The district court found Osceola not liable for sex discrimination and stated that neither the posters nor the complained-of anti-female comments at issue created a hostile environment of the magnitude necessary to support an allegation of sexual harassment. Id. "In her complaint, the plaintiff asserted charges of sex discrimination and sexual harassment in violation of Title VII of the Civil Rights Act of 1964." Id.

90. See supra text accompanying notes 67-71.

91. Rabidue, 805 F.2d at 620.

92. Id.

93. Id.

94. Id.

95. Id.

96. Rabidue, 805 F.2d at 622.

97. Id.

98. Id. The Rabidue court maintained that the posters "had a de minimis effect on the plaintiff's work environment when considered in the context of a society that condones and publicly features and commercially exploits open displays of written and pictorial erotica at the newsstands, on prime-time television, at the cinema, and in other public places." Id.

99. Id. at 620-21.

100. Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).

101. Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986).

102. Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 Vand. L. Rev. 1183, 1212 n.118 (1989); Nancy S. Ehrenreich, Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99 Yale L.J. 1177, 1201-10 (1990); Susan Estrich, Sex at Work, 43 Stan. L. Rev. 813, 843-44 (1991); Childers, Note, supra note 15, at 875-80.

103. See supra notes 13, 17 and accompanying text.

104. See supra notes 13, 17 and accompanying text.

105. Ellison, 924 F.2d at 877-80.

106. Id. at 873.

107. Id. at 874. The first note Gray sent 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.'" Id. Ellison received a second letter, which she described as being "`twenty times, a hundred times weirder'" than the first note. Id. Gray wrote the following:

I know that you are worth knowing with or without sex. . . . 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 . . . .Id.

108. Ellison, 924 F.2d at 874.

109. Id.

110. Id.

111. Id.

112. Id. The IRS agreed to Gray's request on the condition that he spend four additional months in San Francisco and promise not to bother Ellison. Id.

113. Ellison, 924 F.2d at 874.

114. Id.

115. Id.

116. Id. at 874-75.

117. Id. at 875.

118. Ellison, 924 F.2d at 875.

119. Id.

120. Id. at 877 n.8.

121. Id. at 877-78.

122. See supra text accompanying note 67.

123. Ellison, 924 F.2d at 878.

124. Id.

125. Id.

126. Id. at 878-80.

127. Id. at 879.

128. Ellison, 924 F.2d at 878; see also supra note 93 and accompanying text.

129. Ellison, 924 F.2d at 878.

130. Id. at 879.

131. Id.

132. Id. at 878. One court has noted, for example, that "`[a] male supervisor might believe, for example, that it is legitimate . . . to tell a female subordinate that she has a "great figure" or "nice legs." The female subordinate, however, may find such comments offensive.'" Id. (quoting Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir. 1988)).

133. Id. at 879.

134. Ellison, 924 F.2d at 879-80 (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982)).

135. Harris v. Forklift Sys., Inc., 114 S. Ct. 367 (1993).

136. Id. at 369. Harris was one of six managers employed by Forklift. Brief for Petitioner at 3, Harris (No. 92-1168). Of the six managers, four were male, and the remaining two managers were female. Id. The second female manager, Kathy Kernell, was Hardy's daughter. Id. All other female employees at Forklift were employed in clerical positions. Id.

137. Harris, 114 S. Ct. at 369.

138. Id.

139. Id. (quoting App. to Pet. for Cert. at A-13, Harris (No. 92-1168)).

140. Id. (quoting App. to Pet. for Cert. at A-14, Harris (No. 92-1168)).

141. Id.

142. Harris, 114 S. Ct. at 369 (citing App. to Pet. for Cert. at A-14-15, Harris (No. 92-1168)).

143. Id.

144. Id.

145. Brief for Petitioner at 5, Harris (No. 92-1168) (second alteration in original) (quoting J.A. at 48, Harris (No. 92-1168)).

146. Harris, 114 S. Ct. at 369.

147. Brief for Petitioner at 5, Harris (No. 92-1168). Hardy also commented to his female employees that if they ate corn, their breasts would grow. Id. If the woman to whom he was speaking was large-breasted, he would state that she must eat a lot of corn. Id.

148. Harris, 114 S. Ct. at 369.

149. Id.

150. Id.

151. Id. (second alteration in original) (quoting App. to Pet. for Cert. at A-17, Harris (92-1168)).

152. Id. By August 1987, Harris no longer wanted to go to work and endure Hardy's comments. Brief for Petitioner at 6, Harris (No. 92-1168). According to Harris's testimony, she was drinking heavily, was crying all the time, was having trouble sleeping, and was experiencing shortness of breath. Id. Her relationships with her children and co-workers were deteriorating. Id. Harris stated that she felt stupid and useless. Id.

153. Harris, 114 S. Ct. at 369.

154. Id. Harris presented two theories of recovery: a hostile work environment claim and a disparate treatment claim. Brief for Petitioner at 2-3, Harris (No. 92-1168). The disparate treatment claim was dismissed upon Magistrate Sandidge's recommendation and was not at issue before the Supreme Court. Id. at 3 n.3.

155. See supra notes 37-40 and accompanying text.

156. Brief for Petitioner at 3, Harris (No. 92-1168) (citing J.A. at 6-7, Harris (No. 92-1168)).

157. Id. at 5. Female clerical workers testified that they did not take the corn-related comments seriously. Id. The magistrate concluded that the clerical workers were conditioned to accept Hardy's "denigrating behavior" and he disregarded their testimony. Id.

158. Harris, 114 S. Ct. at 369. The case was referred to Magistrate Sandidge for trial, report and recommendation, pursuant to § 706(f)(5) of Title VII, 42 U.S.C. § 2000e(3)-5-(f)(5), Rule 53 of the Federal Rules of Civil Procedure, and Local Rules of the Middle District of Tennessee. Brief for Petitioner at 2 n.2, Harris (No. 92-1168).

159. Harris, 114 S. Ct. at 369 (quoting App. to Pet. for Cert. at A-31, Harris (No. 92-1168)).

160. Harris, 114 S. Ct. at 369. Magistrate Sandidge concluded that Hardy was "`a vulgar man [who] demeans the female employees at his workplace,'" Brief for Petitioner at 3, Harris (No. 92-1168) (quoting App. to Pet. for Cert. at A-14, Harris (No. 92-1168)), and that Harris herself was subjected to "`a continuing pattern of sex-based derogatory conduct . . .' rang[ing] from the `inane and adolescent' to the `truly gross and offensive.'" Id. at 3-4 (alteration in original) (quoting App. to Pet. for Cert. at A-14, Harris (No. 92-1168)). Magistrate Sandidge further found that Hardy's comments had been directed at Harris and other female employees, but not at any male employees. Id. at 4. Using Sixth Circuit precedent, the magistrate found that although Hardy's comments offended Harris and would offend a reasonable woman in her position, Hardy's behavior was not sufficiently severe to interfere with Harris's work performance and not "so severe as to seriously affect her psychological well-being." Id. at 9 (citing App. to Pet. for Cert. at A-19, Harris (No. 92-1168)). As a result, Magistrate Sandidge recommended dismissal of Harris's hostile work environment claim. Id.

161. Harris, 114 S. Ct. at 369; see also supra notes 153-60 and accompanying text.

162. Harris, 114 S. Ct. at 370; see also supra part II.B.1.

163. Harris, 114 S. Ct. at 369-70.

164. Id. at 370 (second alteration in original) (quoting App. to Pet. for Cert. at A-34-35, Harris (No. 92-1168)).

165. Harris v. Forklift Sys., Inc., 976 F.2d 733 (6th Cir. 1992).

166. Harris, 114 S. Ct. at 369. The Supreme Court delivered its opinion less than 30 days after the case was argued. Id. at 367.

167. Id. at 370.

168. Id.

169. Id. at 370-71.

170. Id.; see also supra notes 49-71 and accompanying text.

171. Harris, 114 S. Ct. at 370.

172. Id. (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)).

173. Id. (quoting Meritor, 477 U.S. at 65, 67).

174. Id.

175. Id. (omission in original) (quoting Meritor, 477 U.S. at 67).

176. Harris, 114 U.S. at 370.

177. Id. at 371.

178. Id.

179. Id.

180. Id. In Meritor, the Court stated the following: "`One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers . . . .'" Meritor, 477 U.S. at 66 (omission in original) (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972)).

181. Harris, 114 S. Ct. at 371.

182. Id. (citing Meritor, 477 U.S. at 67).

183. Id. at 370.

184. Id.

185. Id. The Court noted that "if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment." Id.

186. Harris, 114 S. Ct. at 370.

187. Id. at 371. The Harris decision left unanswered the issue of employer liability in hostile work environment claims. Roy, Comment, supra note 76, at 274. The Supreme Court failed "to provide a more detailed structural and contextualized explanation of the ways in which sexual harassment works as a barrier to equal employment" for women. Jane L. Dolkart, Hostile Environment Harassment: Equality, Objectivity, and the Shaping of Legal Standards, 43 Emory L.J. 151, 193 (1994). According to Dolkart, "[s]uch an account would tell the everyday stories of women struggling" in the workplace where "sexualized abuse and violence is the background of their lives. It would explain the place of sexual harassment in the continuum of degradation and violence and the role it plays in women's workplace subordination." Id. The Supreme Court also left unanswered how to determine if the phrase "terms and conditions of employment" has been altered under the Meritor test and whether Meritor's "altered terms and conditions" prong survives as an independent requirement after Harris. Paul F. Mickey, Jr., A Diversity of Definitions on Sexual Harassment, Recorder, Aug. 26, 1994, at 12; see also supra note 69 and accompanying text. Also noticeably missing, is the Court's failure to explicitly address the issue of which gender perspective is the appropriate one to use in sexual harassment claims. See supra part IV.C.

188. Harris, 114 S. Ct. at 371.

189. Id.

190. Id.

191. Id.

192. Id. Upon remand, Magistrate Kent Sandidge, who originally held that Harris had failed to establish an abusive working environment, held that Teresa Harris should receive $151,435 in back pay, bonuses, and 7% interest for the three months of 1987, all of 1988 and 1989, and half of 1990. Sexual Harassment: Harris One Step Closer to Receiving Damages from Forklift Systems, Inc., U.S.L.W. (BNA), Sept. 23, 1994. Magistrate Sandidge, applying the totality of the circumstances approach articulated by the Supreme Court in Harris, found that Harris's work environment had been abusive. Id. Magistrate Sandidge enjoined Forklift from engaging in any conduct of "a hostile nature toward women the same or similar to that conduct found to be unlawful in this case." Id.

193. Harris, 114 S. Ct. at 371-72 (Scalia, J., concurring).

194. Id. at 372 (Scalia, J., concurring) (quoting id. at 370).

195. Id. (Scalia, J., concurring).

196. Id. (Scalia, J., concurring).

197. Id. (Scalia, J., concurring).

198. Harris, 114 S. Ct. at 372 (Scalia, J., concurring).

199. Id. (Scalia, J., concurring).

200. Id. (Scalia, J., concurring).

201. Id. (Scalia, J., concurring).

202. Id. (Scalia, J., concurring).

203. Harris, 114 S. Ct. at 372 (Scalia, J., concurring).

204. Id. (Scalia, J., concurring).

205. Id. (Scalia, J., concurring).

206. Id. (Scalia, J., concurring).

207. Id. (Scalia, J., concurring).

208. Harris, 114 S. Ct. at 372 (Scalia, J., concurring).

209. Id. (Scalia, J., concurring).

210. Id. (Ginsburg, J., concurring).

211. Id. (Ginsburg, J., concurring).

212. Id. (Ginsburg, J., concurring) (citing 42 U.S.C. § 2000e-2(a)(1) (1988)).

213. Harris, 114 S. Ct. at 372 (Ginsburg, J., concurring). Justice Ginsburg suggested in a footnote that she might extend the comparison between race and gender to the context of equal protection. Id. at 373 n.* (Ginsburg, J., concurring), cited in Leading Cases, supra note 29, at 326. Justice Ginsburg stated that the question as to whether gender should receive the highest level of scrutiny as an inherently suspect classification under the equal protection clause, remains open. Harris, 114 S. Ct. at 373 n.* (Ginsburg, J., concurring).

214. Harris, 114 S. Ct. at 372 (Ginsburg, J., concurring) (quoting Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988)).

215. Id. (Ginsburg, J., concurring) (quoting Davis, 858 F.2d at 349).

216. Id. at 372 (Ginsburg, J., concurring). Justice Ginsburg's approach falls between the approach taken by Justice O'Connor and the one taken by Justice Scalia. See id. at 371 (Ginsburg, J., concurring); id. at 372 (Scalia, J., concurring). Justice O'Connor would consider unreasonable interference with a plaintiff's work performance as merely one factor among the other enumerated factors. Id. at 371. Justice Scalia would have this be an absolute test. Id. at 372 (Scalia, J., concurring). Justice Ginsburg would have the adjudicator focus "dominantly" on this one factor. Id. (Ginsburg, J., concurring).

217. Id. at 373 (Ginsburg, J., concurring).

218. Id. at 370-71.

219. Harris, 114 S. Ct. at 370-71.

220. Id. at 371.

221. Id. at 370; see also infra part IV.B.

222. See infra part IV.C.

223. See infra part IV.C.

224. Harris, 114 S. Ct. at 371-72; see also supra notes 121-34 and accompanying text.

225. Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).

226. Id. at 877-78; see also supra notes 121-34 and accompanying text.

227. Ellison, 924 F.2d at 878 n.8.

228. Harris, 114 S. Ct. at 371. Justice O'Connor stated that psychological harm was merely an example used by Meritor and was not intended to be a requirement in a plaintiff's hostile work environment claim. Id.; see also supra text accompanying notes 174-82.

229. Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae at 9-22, Harris (No. 92-1168). "A sexually demeaning work environment can interfere with a reasonable [woman's] work performance--regardless of [her] psychological injury--if the environment hampers her opportunity to succeed vis-à-vis her male peers or denies her credit for her achievements." Id. at 25.

230. Id. at 20.

231. Harris, 114 S. Ct. at 370; see also Brief for Petitioner at 15-17, Harris (No. 92-1168).

232. Meritor, 477 U.S. at 64; see also supra notes 37-40 and accompanying text.

233. Stroehmann Bakeries, Inc. v. Local 776, Int'l Bhd. of Teamsters, 969 F.2d 1436, 1441-42 (3d Cir. 1992).

234. See Harris, 114 S. Ct. at 370; Ellison, 924 F.2d at 878.

235. Brief for Petitioner at 23, Harris (No. 92-1168); see also supra notes 91-93 and accompanying text.

236. Brief for Petitioner at 25-26, Harris (No. 92-1168); see also supra notes 91-94 and accompanying text.

237. Harris, 114 S. Ct. at 370-71.

238. See Brief for Petitioner at 22-26, Harris (No. 92-1168).

239. Id. at 25-26.

240. Brief for Amicus Curiae American Psychological Association at 12-13, Harris (No. 92-1168); see also Susan M. Omilian, Sexual Harassment in Employment 44 (1987), which states the following:

The practical problem is that the employee who stays on the job the longest and puts up with the most offensive sexual harassment is more likely than not going to be the employee who is most dependent on retaining the job. Worst yet, this same employee is likely to be the one most reticent to complain . . . .Id. (quoting Jeppen v. Wunnicke, 611 F. Supp. 78, 82 (D. Alaska 1985)).

241. Brief for Petitioner at 25-26, Harris (No. 92-1168).

242. Id.

243. Brief of Amici Curiae NOW Legal Defense and Education Fund et al. at 12, Harris (No. 92-1168).

244. Id. at 12 (citing Robinson v. Jacksonville Shipyards, Inc. 760 F. Supp. 1486, 1506 (M.D. Fla. 1991)). In Robinson, an expert witness testified about the different coping mechanisms women use when they are victims of sexual harassment. Id. at 12 (citing Robinson, 760 F. Supp. at 1506). The witness claimed that some women avoid acknowledging the harassment by denying its existence, or by joking about it, while others actually make complaints. Id. (citing Robinson, 760 F. Supp. at 1506). She maintained that women are not likely to file complaints due to fear of "escalation of the problem, retaliation from the harasser, and embarrassment in the process of reporting." Robinson, 760 F. Supp. at 1506.

245. Laurie W. Lebreton & Sara S. Loevy, Breaking New Ground: Work Site 2000, A Report Prepared by Chicago Women in Trades 1, 21 (1992), cited in Brief of Amici Curiae NOW Legal Defense and Education Fund et al. at 12, Harris (No. 92-1168). For a discussion of these mechanisms, see Conte, supra note 12, § 1.4, which states the following:

The Merit Board . . . found that although most federal employees [surveyed] are aware of formal remedies for handling sexual harassment complaints, only 5 percent of both female and male victims took advantage of them. Most found their attempts nonproductive. In fact, victims were just as likely to change jobs as a result of the sexual harassment as they were to take formal action. Among women employees, 52 percent of victims did nothing about the harassment, 43 percent avoided the harasser, 44 percent asked the harasser to stop, 20 percent made a joke of the behavior, 14 percent threatened to tell or told others, 15 percent reported the behavior to management, 4 percent went along with the behavior, 2 percent transferred, disciplined, or gave a poor performance rating to the harasser, and 10 percent did something else.Id. (footnotes omitted).

246. Brief of Amici Curiae NOW Legal Defense and Education Fund et al. at 12-13, Harris (No. 92-1168).

247. McCaslin, Note, supra note 15, at 778.

248. Brief of Amici Curiae NOW Legal Defense and Education Fund et al. at 11, Harris (No. 92-1168).

249. Id.

250. Id.

251. Id.

252. See Harris, 114 S. Ct. at 371; see also supra notes 179-82 and accompanying text.

253. See Brief of Amici Curiae NOW Legal Defense and Education Fund et al. at 11, Harris (No. 92-1168); Brief for Petitioner at 26, Harris (No. 92-1168).

254. See Brief for Petitioner at 26, Harris (No. 92-1168) (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976)).

255. See Griggs v. Duke Power Co., 401 U.S. 424 (1971).

256. See Brief of Amici Curiae NOW Legal Defense and Education Fund et al. at 10 n.10, Harris (No. 92-1168) (citing Equal Employment Opportunity Comm'n v. Beverage Canners, Inc., 897 F.2d 1067, 1070, 1072 (11th Cir. 1990); Nazaire v. Trans World Airlines, 807 F.2d 1372, 1380 (7th Cir. 1986), cert. denied, 481 U.S. 1039 (1987); Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986); Vaughn v. Pool Offshore Co., 683 F.2d 922, 924 (5th Cir. 1982)).

257. See id. (citing Bishena v. Marriott Corp., 959 F.2d 239 (9th Cir. 1992)).

258. See id. (citing Daemi v. Church's Fried Chicken, Inc., 931 F.2d 1379, 1384 n.5 (10th Cir. 1991); Cariddi v. Kansas City Chiefs Football, 568 F.2d 87, 88 (8th Cir. 1977)).

259. Harris, 114 S. Ct. at 370; see also supra notes 182-86 and accompanying text.

260. Harris, 114 S. Ct. at 370.

261. Id.

262. Id.

263. Id.

264. Daniels v. Essex Group, 937 F.2d 1264, 1265 (7th Cir. 1991).

265. Id.

266. Andrews v. Philadelphia, 895 F.2d 1469, 1483 (3d Cir. 1990).

267. Daniels, 937 F.2d at 1265.

268. Id. at 1271 (quoting Rabidue v. Osceola Ref. Co., 805 F.2d 611, 620 (6th Cir. 1986)).

269. Id.

270. Id.

271. Andrews, 895 F.2d at 1483.

272. Daniels, 937 F.2d at 1272. "The employee may quit `cold turkey' or . . . may experience a prolonged period of turmoil in which the individual regularly avoids the workplace for fear of suffering further harassment. Alternatively, an employee may react angrily to . . . those co-workers responsible for the harassment." Id.

273. McCaslin, Note, supra note 15, at 775.

274. Id.

275. Id.

276. Id.

277. Id.

278. McCaslin, Note, supra note 15, at 775.

279. Id.

280. Id.

281. Id.

282. Id.

283. McCaslin, Note, supra note 15, at 775.

284. Id.

285. Id.

286. Id.

287. See Leading Cases, supra note 29, at 327 n.54 (citing Jana H. Carey, How Defense Litigators Should Respond to Harris v. Forklift Systems, Inside Litig., Jan. 1994, at 3).

288. Id. at 323.

289. Harris, 114 S. Ct. at 371.

290. Id.

291. See generally Carey, supra note 287; Mickey, supra note 187; Leading Cases, supra note 29.

292. See Dolkart, supra note 187, at 151-52, 167-68, 190-91.

293. See McCaslin, Note, supra note 15, at 771.

294. See generally Anne C. Levy, The United States Supreme Court Opinion in Harris v. Forklift Systems: "Full of Sound and Fury Signifying Nothing," 43 Kan. L. Rev. 275, 301 (1995); Liesa L. Bernardin, Comment, Does the Reasonable Woman Exist and Does She Have Any Place in Hostile Environment Sexual Harassment Claims Under Title VII After Harris, 46 Fla. L. Rev. 291 (1994); Carey, supra note 287; Leading Cases, supra note 29.

295. Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1454-57 (7th Cir. 1994) (following Harris's objective/subjective standard); Spain v. Gallegos, 26 F.3d 439, 446-47 (3d Cir. 1994) (following Harris's modified reasonable person standard); cf. Steiner v. Showboat Operating Co., 25 F.3d 1459, 1462-63 (9th Cir. 1994) (holding that Harris did not resolve the issue concerning which standard is the appropriate one to use in judging sexual harassment allegations, and following Ellison's use of the reasonable woman standard); Currie v. Kowalewski, 842 F. Supp. 57, 62 (N.D.N.Y. 1994) (holding that Harris leaves the reasonable person standard debate unresolved); Coleman v. Tennessee, 846 F. Supp. 582, 589 (M.D. Tenn. 1993) (following Harris's modified reasonable person standard).

296. Leading Cases, supra note 29, at 323.

297. Id. at 327.

298. Id. at 328.

299. Stephen N. Shulman & Charles F. Abernathy, The Law of Equal Employment Opportunity ¶ 5.06 (1990).

300. Brief for American Psychological Association at 6, Harris (No. 92-1168).

301. Id.

302. Id.

303. Id.

304. Id.

305. Ellison, 924 F.2d at 880 n.15 (quoting United States Merit Systems Protection Board, Sexual Harassment in the Federal Government: An Update 39 (1988)).

* This law review article is dedicated to my mother, Susan Maxwell Colson, for her endless support and love and for instilling in me the will and strength to succeed.