Guess v. Bethlehem Steel Corp.

• Citation: 913 F.2d 463
• Decision Date: 28 November 1990
• Docket Number: No. 89-1284,89-1284
• Parties: 53 Fair Empl.Prac.Cas. 1547, 54 Empl. Prac. Dec. P 40,251 Juanita GUESS, Plaintiff-Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 463

913 F.2d 463

53 Fair Empl.Prac.Cas. 1547,

54 Empl. Prac. Dec. P 40,251

Juanita GUESS, Plaintiff-Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant-Appellee.

No. 89-1284.

United States Court of Appeals, Seventh Circuit.

Submitted July 20, 1990.

Decided Sept. 20, 1990.

Rehearing Denied Nov. 28, 1990.

John R. Highland, Valparaiso, Ind., for plaintiff-appellant.

Katharine E. Gerken, Larry G. Evans, Hoeppner, Wagner & Evans, Valparaiso, Ind., for defendant-appellee.

Before WOOD, Jr., CUDAHY, and POSNER, Circuit Judges.

POSNER, Circuit Judge.

Juanita Guess sued her employer, Bethlehem Steel Corporation, charging sexual harassment in violation of Title VII of the Civil Rights Act of 1964 plus breach of contract and intentional infliction of emotional distress in violation of Indiana law. On Bethlehem's motion for summary judgment, the district judge dismissed the two state-law claims but held that Bethlehem must go to trial on the claim of sexual harassment. At the close of the plaintiff's case the district judge granted Bethlehem's motion for involuntary dismissal, Fed.R.Civ.P. 41(b), on the ground that the plaintiff had failed to establish an element of the prima facie case of sexual harassment--that the defendant had failed to take remedial action promptly after discovering the harassment.

Should the case have been dismissed even earlier? It might seem that since the plaintiff was not fired (whether actually or constructively) or demoted, and therefore cannot demand reinstatement or back pay, and since Title VII does not authorize the award of common law damages, or an award of attorney's fees if no other relief is awarded, the Title VII claim should have been dismissed before trial, as in Bohen v. City of East Chicago, 799 F.2d 1180, 1184 (7th Cir.1986), and Swanson v. Elmhurst Chrysler Plymouth, Inc., 882 F.2d 1235, 1239-40 (7th Cir.1989), regardless of the merits of the claim. Cf. id. at 1240. If that had been done, jurisdiction should have been relinquished over the pendent claims in accordance with the rule that (with immaterial exceptions) requires this result when the federal claims are dismissed before trial. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). However, besides requesting pecuniary relief unlikely to be obtainable under Title VII, the complaint seeks injunctive relief--an order requiring the defendant to fire the employee who harassed the plaintiff and to establish a mechanism for preventing further sexual harassment of the plaintiff and other employees.

So both the Title VII claim and the pendent claims are properly before us, and we can proceed to the merits. The facts are straightforward. One day a foreman at the plant where Mrs. Guess works picked her up under her arms, set her down, and forced her face against his crotch. She hit him, cursed him, and left crying amidst the laughter of the foreman and other male workers who witnessed the incident. She complained promptly to supervisory employees, who reprimanded the foreman, ordered him to stay away from Mrs. Guess, and later denied him a promotion and a merit raise. The incident occurred in 1986 and, so far as we are advised, there have been no similar incidents since.

Title VII's prohibition against sex discrimination in working conditions was held in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), to include sexual harassment in the workplace. But as the statute does not use the term or otherwise refer specifically to the conduct described by it, the metes and bounds of the wrong have been left for definition by the courts, which in turn have drawn heavily on interpretive regulations issued by the Equal Employment Opportunity Commission. 29 C.F.R. Sec. 1604.11. These regulations are the ultimate source of the view expressed by the district judge in this case that the prima facie case of employer liability for sexual harassment by a coworker of the plaintiff requires proof that the employer did not respond promptly and effectively when it was apprised of (or should have discovered) the harassment.

The pertinent regulation provides that "with respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action." 29 C.F.R. Sec. 1604.11(d). Although the EEOC's regulations do not have the force of law--they are merely advisory--they have been influential with the courts, which are fond of paraphrasing the formula that we just quoted. Thus in Barrett v. Omaha National Bank, 726 F.2d 424, 427 (8th Cir.1984), we read that "sexual harassment by a co-employee is not a violation of Title VII unless the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action." Essentially the same formulation appears in Katz v. Dole, 709 F.2d 251, 255 (4th Cir.1983), and Rabidue v. Osceola Refining Co., 805 F.2d 611, 621 (6th Cir.1986), as well as in our own Brooms v. Regal Tube Co., 881 F.2d 412, 421 (7th Cir.1989).

Unfortunately, some of the cases have created potential confusion by calling the standard of employer liability that they endorse a form of respondeat superior. Katz, for example, describes the standard as a "theory of respondeat superior," 709 F.2d at 255, and Rabidue equates the standard to "respondeat superior liability," 805 F.2d at 621, having earlier, in summarizing the elements of the prima facie case, listed as element number five "the existence of respondeat superior liability." Id. at 619- 20. See also Swanson v. Elmhurst Chrysler Plymouth, Inc., 882 F.2d 1235, 1238 (7th Cir.1989). In like vein Jones v. Flagship International, 793 F.2d 714, 720 (5th Cir.1986), defines element number five as "(5) Respondent [sic] superior, i.e., that the employer knew or should have known of the harassment in question and failed to take prompt remedial action." The truth is that respondeat superior is, from the employer's standpoint, a doctrine of strict liability. It makes the employer liable, regardless of what he knew or should have known or did or should have done, for the torts that his employees commit in the course of, or (in the case of intentional torts) in the furtherance of, their employment. But it is clear from the Meritor decision, as well as from the EEOC's regulation and the cases that we have cited, that an employer's liability for sexual harassment by the plaintiff...