This is a case summary of Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985). Primary subjects include the following:
» SEXUAL HARASSMENT (HOSTILE WORK ENVIRONMENT)
» IMPUTING HARASSMENT TO EMPLOYER
» CONSTRUCTIVE DISCHARGE
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CASE SUMMARY – 16 Facts:
[1] This case of first impression in this state involves sexual harassment at the work place.
[2] Two female employees brought suit against their employer, Georgia-Pacific Corporation, alleging sex discrimination in violation of RCW 49.60 and the tort of outrage [also known as intentional infliction of emotional distress].
[3] From October 1979 until January 1982, … a male co-worker, on several occasions ‘would place his hands on [one of the plaintiff’s] hips and rub his crotch across her back side as he was passing[,] … [stared] at her breasts[,] … placed his hand on her right breast without any welcome or invitation … and approach[ed] her from behind and grabbing her buttocks with his hands.’
[4] As early as November 1979 the plant manager knew this male employee was ‘using abusive language around female employees’ and had ‘touched or fondled’ this plaintiff and another female employee ‘in an unwanted sexual way.’ No corrective or disciplinary action was taken.
[5] Complaints of the co-worker’s ‘other intimidating behavior’ toward this plaintiff were lodged again in mid-1981, this time to a plant superintendent who acknowledged that other female employees, including the other plaintiff in this action, were also having problems with this male co-worker.
[6] Shortly thereafter, this plaintiff began to hear threats and complaints concerning her job performance purportedly coming from the plant manager.
[7] The other plaintiff had been working for the employer for only a month when the same male co-worker began to press himself against her in the same manner as he passed by her.
[8] A complaint was lodged with the plaint superintendent.
[9] The male co-worker would also stare at her ‘in a sexually intimidating way, follow her about the plant, in such a way that it intimidated her, [and] interfered with her work performance.’
[10] She tried to avoid him and informed the plant manager ‘who did nothing.’ She and yet another female employee confronted the plant manager about this ‘continued sexual harassment.’
[11] The male co-worker was finally transferred to another shift, but his course of intimidation continued. In addition, other employees, including a supervisor, acted ‘in an intimidating fashion’ toward this plaintiff because of her complaints.
[12] Not until February 1982 was the male co-worker given a 3-day suspension ‘based on his prior acts of sexual harassment.’
[13] One of the plaintiffs suffered ‘severe emotional anguish and distress demonstrated by physical symptoms’ of various kinds. She resigned in December 1981 after working less than 9 months.
[14] The other plaintiff was ’emotionally and psychologically injured’ and likewise demonstrated physical manifestations of ‘severe emotional distress.’ She resigned in October 1982.
[15] The trial court found that as a result of the foregoing acts and inactions, along with other similar ones, a hostile and intimidating work environment was created and it was this which proximately caused severe emotional distress to the plaintiffs.
[16] The trial court also found that these facts constituted the tort of outrage but that they did not permit a finding that either of the plaintiffs were constructively discharged from their jobs.
Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985) (internal citations omitted) (hyperlink added).
ISSUE #1: Did the trial court err in concluding that the employer was liable for sexual discrimination in violation of RCW 49.60?
[1-1] PROMPT & ADEQUATE CORRECTIVE ACTION: Under RCW 49.60, “an employer may ordinarily avoid liability for sexual harassment by taking prompt and adequate corrective action when it learns that an employee is being sexually harassed.” Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlink added).
[1-2] HOSTILE WORK ENVIRONMENT: “To establish a work environment sexual harassment case … an employee must prove the existence of the following [four] elements[ ][:]” (1) the harassment was unwelcome; (2) the harassment was because of sex; (3) the harassment affected the terms or conditions of employment; and (4) the harassment is imputed to the employer. Id. at 406-07 (footnote omitted).
[1-2a] THE HARASSMENT WAS UNWELCOME: “In order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Id. at 406.
[1-2b] THE HARASSMENT WAS BECAUSE OF SEX: “The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been of a different sex? This statutory criterion requires that the gender of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id.
[1-2c] THE HARASSMENT AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT: “Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. “The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id.
TOTALITY OF THE CIRCUMSTANCES TEST: “Whether the harassment at the workplace is sufficiently severe and persistent to seriously affect the emotional or psychological well being of an employee is a question to be determined with regard to the totality of the circumstances.” Id. at 406-07
[1-2d] THE HARASSMENT IS IMPUTED TO THE EMPLOYER:
WHERE OWNER, MANAGER, PARTNER, OR CORPORATE OFFICER HARASSES: “Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.
WHERE SUPERVISORS OR CO-WORKERS HARASS: “To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer[:]
(a) authorized, knew, or should have known of the harassment and
(b) failed to take reasonably prompt and adequate corrective action.
Id. (emphasis and paragraph formatting added).
SHOWN THROUGH COMPLAINTS/PERVASIVENESS AND INSUFFICIENT REMEDIAL ACTION: “This may be shown by proving[:]
(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and
(b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.
Id. (paragraph formatting and emphasis added).
[1-3] ONLY FOURTH ELEMENT (HARSSMENT IMPUTED TO EMPLOYER) WAS AT ISSUE: The Court only addressed the fourth element by reviewing the trial court’s finding as follows:
In the case at bar, [the employer] knew or should have known that [the male co-worker’s] unwelcome sexual advances and other verbal or physical conduct of his [sic] sexual nature were unreasonably interfering with [the plaintiffs’] work performance and/or created an intimidating, hostile or offensive working environment. Further, no reasonable immediate or appropriate corrective action was taken to remedy the situation.
Id. at 407 (citing Trial Court Finding of fact 54). The Court determined that “this finding is amply supported by the record; it is also unchallenged on appeal.”
[1-4] PLAINTIFFS SUBJECTED TO HOSTILE WORK ENVIRONMENT: The Court held that “the plaintiff-employees established that they were subjected to uninvited sexual harassment by a co-worker with the actual knowledge of two supervisory personnel who undertook no reasonably prompt and adequate remedial measures to alleviate the resulting hostile and intimidating work environment in which the employees found themselves.” Id. at 404.
The Court further held that “the recovery of damages by the plaintiff-employees for the mental and emotional suffering they sustained was an appropriate remedy for such unlawful sexual discrimination.” Id.
ISSUE #2: Does a determination of unlawful discrimination support Plaintiffs’ claims of constructive discharge from employment?
[2-1] UNLAWFUL DISCHARGE ALONE IS INSUFFICIENT TO SHOW CONSTRUCTIVE DISCHARGE: The “existence of unlawful discharge alone is insufficient to support a finding of constructive discharge from employment.” Id. at 408 (internal citations omitted).
[2-2] INSUFFICIENT EVIDENCE: The Court found that “the evidence in this case was not sufficient to convince the trial court, as the trier of fact, that either of the employees’ resignations constituted a constructive discharge such as to justify additional damages on account thereof.” Id.
[2-3] APPELLATE COURT AGREED WITH TRIAL COURT: The Court agreed with the trial court and found “that the existence of unlawful discrimination alone is insufficient to support a finding of constructive discharge from employment. Id. at 408 (referencing generally, Henson v. Dundee, 682 F.2d 897, 907-08 (11th Cir. 1982); Nolan v. Cleland, 686 F.2d 806, 812-13 (9th Cir.1982); see also, Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981)).
Accordingly, the Court held that “on the record Before us we cannot conclude this was error” for the trial court to hold that the facts did not permit a finding that either of the plaintiffs were constructively discharged from their jobs. Id.
NOTABLES & IMPLICATIONS:
POLICY
(1) “Sexual harassment as a working condition unfairly handicaps an employee against whom it is directed in his or her work performance and as such is a barrier to sexual equality in the workplace.” Id. at 405.
(2) “[W]e view the essential purpose of [the sexual harassment cause of action] to be preventative in nature.” See id. at 407-08 (referencing Bundy v. Jackson, 641 F.2d 934, 945 (D.C.Cir.1981)).
(3) “[T]he Act does not impose a duty on the employer to maintain a pristine working environment. Rather, it imposes a duty on the employer to take prompt and appropriate action when it knows or should know of co-employees’ conduct in the workplace amounting to sexual harassment.” Id. at 406 (citing Continental Can Co. v. Minnesota, 297 N.W.2d 241, 249 (Minn.1980)).
QUID PRO QUO SEXUAL HARASSMENT
(4) Quid Pro Quo sexual harassment is “a situation where an employer requires sexual consideration from an employee as a quid pro quo for job benefits.” Id. at 405.
TITLE VII
(5) “Interpretations of Title VII, § 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1982) are not binding on this court, but are instructive and lend support to our decision herein.” Id. at 409, n.2 (referencing Davis v. Department of Labor & Indus., 94 Wash.2d 119, 615 P.2d 1279 (1980)).
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