Can An Individual Be Held Liable for Sexual Harassment?

Under Title VII, individuals are not personally liable for damages. Miller v. Maxwell's International, Inc. (9th Cir. 1993) 991 F.2d 583, 587-88. However, the FEHA extends liability to "any person," in addition to employers, their agents, and others. Therefore, a supervisor can be held individually liable for harassment under FEHA. Page v. Superior Court (3NET Systems, Inc.) (1995) 31 Cal.App.4th 1206, 37 Cal.Rptr.2d 529, 535. The California Supreme Court has ruled that managers and supervisors cannot be held individually liable for discrimination under the state Fair Employment and Housing Act ("FEHA") or the common law theory of wrongful termination in violation of public policy. Reno v. Baird, 18 Cal.4th 640, 957 P.2d 1333, 76 Cal.Rptr.2d 499

Under FEHA, individual defendants may be sued as long as they are identified in either the caption or the body of the DFEH charge. If an individual is not named in at least one or the other, however, he/she may not be sued under FEHA because the plaintiff will not have exhausted his/her administrative remedies. Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 55 Cal.Rptr.2d 443 (and see discussion below on “Filing an Administrative Charge of Discrimination or Harassment”). Under the EEOC, however, individuals may be subject to suit even if they are not named in a charge, as long as the individual's identity could otherwise be easily obtained or the individual had reason to know that he/she was subject of the complainant's claims. Sosa v. Hiraoka (9th Cir. 1990) 920 F.2d 1451, 1458-1459.

Harassment in the workplace is not always limited to behavior on the job site. Liability has been imposed even when the offensive activity has occurred outside the normal place of employment and even when the plaintiff is viewed only as an applicant for a job. In Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 58 Cal.Rptr.2d 122, an aspiring actor, who allegedly was drugged and gang-raped by an associate casting director and four other men at the director's home, sued the individuals involved for various causes of action, including actions against the employer for sexual harassment under the FEHA. On review, the court of appeal reversed the lower court's decision to disallow the sexual harassment causes of action. In so doing, the reviewing court held that the plaintiff's allegations were adequate to state a statutory claim for work-related sexual harassment and that, if proven, the act imposed strict liability on the employer (ABC Entertainment) regardless of whether the employer knew or should have known about the director's propensities. Cal. Gov. Code, § 12940, subd. (h). Doe, supra, 50 Cal.App.4th at 1052-1053.

What is significant in the Doe case is that the alleged sexual assault occurred away from the workplace and not during working hours. Further, the plaintiff was not an actual employee of the defendant, but rather someone seeking work with the defendant. The fact that an assistant casting director could bind a large corporation as the agent of that corporation, even when the alleged behavior was removed from the job site, is a significant extension of the reach of FEHA liability.

Such liability can extend to holiday parties as well. Indeed, federal courts across the United States have allowed sexual harassment claims to go forward, even when the parties are off the work premises and especially if the employer had reason to know that the alleged harasser had a history of inappropriate behavior. In Ambrose v. U.S. Steel Corp. (N.D. Calif. 1985) 39 Fair Empl. Prac. Cas. (BNA) 30, the court found an employer liable for a supervisor's sexual
harassment of the plaintiff based, in part, on the supervisor's unwelcome advances and inappropriate comments at a corporate Christmas party. At one party off site from their workplace, the plaintiff's supervisor asked plaintiff if she ever had affairs. At another party, he asked her about the bra size of a co-worker and put his arms around plaintiff after walking her to her car. On other occasions, he asked plaintiff about her dating proclivities and told her he thought she would be good in bed. He also asked her views on oral sex. Plaintiff successfully argued at trial that she had been terminated because she rejected her supervisor's sexual advances.

Similarly, in King v. Board of Regents of University of Wisconsin System (7th Cir. 1990) 898 F.2d 533, the court, on appeal, evaluated a claim which was based, in part, on allegations of unwelcome advances at a departmental Christmas party. There, an assistant dean followed the plaintiff into the bathroom at the party, stated he "had to have her" and that “he would have her” and forcibly kissed and fondled her. In affirming a finding of liability for sexual harassment against the dean, the court rejected his defense that his actions merely resulted from his desire for plaintiff as an individual and, therefore, was not sex-based harassment. In Contardo v. Merrill Lynch, Pierce, Fenner & Smith Inc. (D.Mass. 1990) 753 F.Supp. 406, the court found that the plaintiff had established a prima facie case of sexual harassment based, in part, on repeated sexual innuendoes and improper touching at office gatherings such as Christmas parties. The plaintiff was eventually awarded $250,000 in punitive damages.

If the alleged harassment is sufficiently severe, even one incident will support a claim of employer liability. Such is the case where the employee has been physically assaulted or raped. Tompka v. Seiler Corp. (2d Cir. 1995) 66 F.3d 1295 (declined to follow by Gordan v Cummings 2000 WL 419716; called into doubt by Mosley v. Beaumont Ind. Sc. Dist. (1999) 997 S.W.2d 934) (even a single incident of sexual assault so alters the conditions of the victim's employment as to create an abusive work environment for purposes of Title VII liability.) Additionally, risqué entertainment can support a claim of impermissible harassment. For example, the hiring of female strippers at employer-hosted functions can be relevant to a claim of hostile work environment sexual harassment. EEOC v. Acorn Niles Corp. (N.D. Ill. Aug. 29, 1995) 93 Civ. 5981, 1995 WL 519976, 1995 U.S. Dist. Lexis 12649. Similarly, a court has found that evidence of office parties at which women were degraded, strippers performed and a videotape of a male employee with bare-breasted female sales representatives was shown established sexual harassment for which the employer was liable. See Stacks v. Southwestern Bell Yellow Pages, Inc. (8th Cir. 1994) 27 F.3d 1316, 1326-1327.

This contrasts with the use of bare-breasted mermaids as table decorations at an office Christmas party which the court found insufficient to establish a claim of harassment against the employer. See Jones v. Flagship Int'l (5th Cir. 1986) 793 F.2d 714. In this instance, the court found that the offending act was not so pervasive as to constitute a hostile work environment.
Similarly, the isolated incident of giving an employee a gift of red lace underwear at an office Christmas party was not found to be actionable. Babcock v. Frank (S.D.N.Y. 1992) 783 F.Supp. 800.

As a whole, when claims of harassment involve isolated remarks or incidents at corporate parties which are not severe in nature, and where there is not an accompanying claim of a pattern of similar behavior in the workplace, the courts have not favored a finding of employer liability. Nevertheless, to avoid the possibility of a lawsuit, employers should discourage the giving of suggestive or inappropriate gifts and should disallow potentially offensive entertainment at work- sponsored parties.

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