Horn v. Duke Homes, Div. of Windsor Mobile Homes, Inc.

• Citation: 755 F.2d 599
• Decision Date: 26 February 1985
• Docket Number: Nos. 82-1944,82-2000,s. 82-1944
• Parties: 37 Fair Empl.Prac.Cas. 228, 36 Empl. Prac. Dec. P 35,056, 53 USLW 2446 Vera HORN, Plaintiff-Appellant, v. DUKE HOMES, DIVISION OF WINDSOR MOBILE HOMES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 599

755 F.2d 599

37 Fair Empl.Prac.Cas. 228,

36 Empl. Prac. Dec. P 35,056, 53 USLW 2446

Vera HORN, Plaintiff-Appellant, v. DUKE HOMES, DIVISION OF WINDSOR MOBILE HOMES, INC.,

Defendant-Appellee.

Nos. 82-1944, 82-2000.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 5, 1984.

Decided Feb. 26, 1985.

James D. Stevens, Elkhart, Ind., for plaintiff-appellant.

William J. Cohen, Elkhart, Ind., for defendant-appellee.

Before ESCHBACH and COFFEY, Circuit Judges, and SWYGERT, Senior Circuit Judge.

SWYGERT, Senior Circuit Judge.

Vera Horn, the prevailing plaintiff in the Title VII action below, appeals from the district court's refusal to award her back pay. The defendant, Duke Homes, Inc. ("Duke"), a division of the Indiana corporation Windsor Mobile Homes, Inc., cross-appeals from the district court's finding that it was liable for sex-based discrimination against Horn. We affirm the district court's finding of liability and reverse its denial of back pay.

I

On May 5, 1980 Horn was discharged from her employ as a factory worker for Duke, a manufacturer of mobile homes. After receiving notice of right to sue from the EEOC, Horn filed suit alleging that she was terminated because of her refusal to respond to the sexual advances of Duke's plant superintendent, Frank Haas, and that her right to refuse such advances was protected by Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. Secs. 2000e-2000e-17 (1982). After a bench trial, the district judge entered judgment for Horn.

At trial Horn testified that she was forty-seven years old and began her employ with Duke in August 1979. Transcript of Proceedings at 18 (hereinafter cited as "T."). She was hired by Frank Haas, T. 21, who after a few months began to make sexual advances, T. 21-22. The advances took the form of leers, T. 22, 34, obscene gestures, T. 34, 37, lewd comments, T. 31, 32, 35, remarks about her sexual needs now that her husband had left her, T. 31, 36, and promises that he would make it "easy" for her at Duke if she would "go out" with him, T. 25, 30, 36. Horn rejected these advances, T. 31, 36, the last of which occurred two weeks before her discharge, T. 35-36. Shortly after the last rejection, Haas orally reprimanded her for substandard work, T. 49-50. Following the reprimand, the first she had ever received during her tenure at Duke, Horn was transferred to another section of the production line for approximately one week, T. 21-35, 49-54. Then, she was abruptly called into Haas' office and terminated, T. 54.

Horn attempted to corroborate her testimony in two respects. First, Hans Nast, a former employee of Duke, testified that he overheard Haas tell Horn "to the effect that if she would get together with him she wouldn't have to work so hard." T. 89. Second, Horn introduced the testimony of three former female employees of Duke to establish Haas' propensity to use his power at Duke to sexually exploit women who were vulnerable because of marital problems and financial dependency on their jobs.

Leanna Miller testified that Haas physically compelled her to have oral sex with him, T. 108. She was divorced at the time, T. 109, and subsequently began an affair with Haas' brother in part because she believed it would make it "easier" for her at Duke, T. 111-12, a motive that also eventually caused her again to have sexual relations with Haas at the factory, T. 114-15.

Pattie King testified that shortly after she separated from her husband, she took a job with Duke, T. 118-19. After a few months, Haas commented about her single status and made sexual advances, which King refused, T. 120-22. Following this incident, Haas consistently began to walk into King in order to brush up against her breasts, T. 122-23. When she asked for a raise in order to support her children and furnish her home, Haas stated that all she had to do was to "cooperate" with him, T. 124-25. King threatened to "put him in his place with a weapon," T. 126, but eventually decided, instead, to leave her job, T. 127.

Anita Loomis testified that while an employee at Duke, she had an affair with Haas, T. 137. The affair was voluntary and lasted approximately two years, T. 137-39.

Duke introduced several witnesses who testified that Horn was unable to perform her job satisfactorily, T. 164-65, 173, 197-98, 204, 210. Haas testified that he discharged Horn because of complaints about her work. T. 223-25. Although he had given her two merit raises to reward her for good work, T. 247-49, Haas believed that Horn's marital problems caused an abrupt decline in her job performance, which led to her termination, T. 222-24. Haas denied making sexual advances to Horn and King, T. 227, 257, but he admitted that he asked Horn to have a drink with him and other Duke employees, T. 237. Haas also admitted having sexual relations with Miller and Loomis, although he asserted that both relationships were uncoerced, T. 229-30.

Howard Lesher, Haas' supervisor, testified that, immediately after her termination, Horn complained to him about Haas' behavior, T. 269-70. After investigating the charges, he concluded that Horn was terminated because her personal problems prevented her from performing her job satisfactorily, T. 270-72. Lesher asserted that Haas normally had absolute authority to hire and fire the employees Haas supervised without consulting him, T. 280. Although it was the company's policy to terminate only for good cause, Lesher conceded that it was Haas who had the authority to determine whether that standard had been met, T. 280-81. Lesher asserted, however, that neither he nor the company condoned sexual harassment of its employees, T. 273.

The district judge reasoned that the case hinged on a simple credibility determination and concluded that Haas' testimony was not credible. T. 314-15; see also Finding of Fact No. 5. Not only did Haas make sexual advances toward Horn, but sexual harassment characterized "the totality of his relationship with women in the plant." T. 316; see also Finding of Fact No. 5 (Horn's testimony was credible and corroborated by testimony of Nast, Miller, and King). The complaints about Horn's performance were "thin" and "belated" and, consequently, the employer failed to show any legitimate cause for Horn's termination. T. 316, 319. Accordingly, the district judge concluded that Horn had proven by a preponderance of the evidence that consent to Haas' sexual advances was a condition of employment and that such a condition violated Horn's Title VII rights. Conclusion of Law No. 3.

The remedy ordered by the district judge was to assess "front pay" at $48.00 per day from the date of judgment until the date of Horn's eventual reinstatement and $3,000 in attorney's fees. The district judge expressly refused to award back pay. T. 320-21. He reasoned that he enjoyed "discretion" with respect to this issue, T. 320-21, and that the record was "just not adequate" for the award to be made, T. 320.

II

We turn first to the district court's finding of liability. Duke challenges no finding of fact. ¹ Rather, it argues that it is entitled to judgment as a matter of law because the district judge found that the supervisory hierarchy above Haas neither knew nor approved of Haas' sexual misconduct. Appellee's Brief at 16. In addition, Duke somewhat cryptically challenges Horn's premise that Title VII protects an employee's right to refuse to submit to sexual relations as a condition of employment. See id. at 14 (alluding to cases where sexual harassment was successfully challenged as not stating a cause of action).

We hold that Title VII prohibits an employer, acting through one of its supervisory employees, from imposing sexual consideration as a condition of employment. ² Although it is true that other doctrinal vehicles can be used to remedy the type of wrong committed by Haas, ³ sexual consideration constitutes precisely the kind of "artificial, arbitrary, and unnecessary barrier[ ] to employment," that Title VII was intended to prevent. See Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). But for Horn's womanhood, Haas would not have demanded sex as a condition of employment. Accord Barnes v. Costle, 561 F.2d 983, 990 (D.C.Cir.1977). Because of her sex, therefore, Horn was disadvantaged by pressure to submit to an additional, humiliating condition of employment that served no legitimate purpose of the employer. Her right to refuse this condition was protected by Title VII. The cases holding to the contrary have been repudiated, ⁴ and our holding is in accord with that of every circuit that has reached the issue. ⁵

We also decline Duke's invitation to require "actual or constructive knowledge of a supervisor's conduct and failure to take remedial action before holding an employer liable for sexual harassment involving tangible job detriment." Appellee's Brief at 16. Such a requirement may be necessary in those cases where the plaintiff is sexually harassed by his or her co-employees, see, e.g., Bundy v. Jackson, 641 F.2d 934 (D.C.Cir.1981), though we need not decide that issue in this case, see supra note 2. But with respect to the discriminatory acts of supervisory employees, Duke's position finds no support in either precedent or policy.

Every circuit that has reached the issue has adopted the EEOC's rule imposing strict liability on employers for the acts of sexual harassment committed by their supervisory employees:

Applying general Title VII principles, an employer, ... is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence....

29 C.F.R. Sec. 1604.11(c); ⁶ accord Henson v. City of Dundee, 682 F.2d 897 (11th Cir.1982); Bundy, 641 F.2d at...