him to discharge, and also requiring him to attend additional Human Resources training.
Rushing was not satisfied and opted to purse the grievance to Step 3. After a March 24, 1994 hearing, hearing officer Caren Wuerl affirmed the Step 1 and 2 conclusions in a written finding dated April 19, 1994. There is no indication that the incident has proceeded to a Step 4 hearing.
Meanwhile Rushing filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on September 10, 1993 (Rushing Dep. Ex. 6). On May 21, 1994 he was issued a right to sue letter, and on August 18, 1994 he filed his multicount complaint in this action. Count I is a standard sex discrimination claim under Section 2000e-2, while Count II is a retaliation claim under Section 2000e-3. Both Title VII counts target United and Montes. Rushing also invokes this Court's supplemental jurisdiction under 28 U.S.C. § 1367 ("Section 1367") to assert three state law claims:
Count IV charges that United was negligent in supervising and training Montes, Count V asserts that Montes intentionally inflicted emotional distress upon Rushing and Count VI (creatively titled "Ratification") claims that by not taking action against Montes United "caused Plaintiff to suffer great mental suffering, pain, physical distress, and other ailments...." This opinion treats Counts I and II separately at the outset before turning to the state law claims.
Count I -- Sexual Harassment
Title VII's prohibition against discrimination on the basis of sex includes sexual harassment ( Harris v. Forklift Sys., Inc., 126 L. Ed. 2d 295, 114 S. Ct. 367, 370 (1993); Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 66-67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). Sexual harassment occurs either (1) under a "hostile environment theory" where an employer's conduct--or conduct by an employee that can be attributed to the employer--creates a work environment that is hostile or abusive to the plaintiff ( Saxton v. AT&T Co., 10 F.3d 526, 533 (7th Cir. 1993) or (2) under a "quid pro quo" theory where submission to sexual demands is made a condition of tangible employment benefits ( Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 461 (7th Cir. 1990).
Rushing has asserted both of those theories against Montes as well as United. However, Williams v. Banning, 72 F.3d 552, 553-54 (7th Cir. 1995) has held that a supervisor in his or her individual capacity does not fall within Title VII's definition of "employer," so that Title VII does not impose individual liability on supervisors. Because Williams dictates that Rushing's Title VII claim against Montes must be dismissed, this opinion considers the Title VII claims only against United.
It should be said at the outset that this opinion need not and will not pause to deal at any length with the currently much-mooted question whether a charge of same-sex harassment states a claim under Title VII. This Court was one of the first to deal with that issue directly, answering that question in the affirmative some 15 years ago in a case in which plaintiff was the asserted victim of homosexual advances ( Wright v. Methodist Youth Servs., 511 F. Supp. 307, 310 (N.D. Ill. 1981)). Since then the judicial reviews--most of them dealing not with actual homosexual harassment but with assertedly hostile work environments caused by excessive sex-related comments and suggestive behavior lacking the element of overt homosexual advances--have been mixed (most recently, see the discussion in the two opinions in Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 1996 U.S. App. LEXIS 3833, 1996 WL 93733 (4th Cir. 1996), and a bit earlier the comprehensive--and to this Court powerfully persuasive--treatments of the issue in Williams v. District of Columbia, 1996 U.S. Dist. LEXIS 1338, 94-2727 (JHG), 1996 WL 56100, at *6-*9 (D. D.C. Feb. 5) and Sardinia v. Dellwood Foods, Inc., No. 94 Civ. 5458 (LAP), 1995 U.S. Dist. LEXIS 16073, 1995 WL 640502, at *3-*6 (S.D. N.Y. Nov. 1)). Our Court of Appeals has not ruled on the matter, but Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995) has certainly acknowledged the possibility that such claims are actionable.
This Court sees no reason to change its original view (when it was Wright in the homophonic as well as the literal sense) and therefore will not dispatch Rushing's Title VII claim on that basis.
But as the ensuing discussion demonstrates, he loses on other grounds.
To prevail on a hostile environment theory Rushing must eventually prove
that Montes' conduct "had the purpose or effect of unreasonably interfering with [Rushing's] work performance or creating an intimidating, hostile, or offensive working environment" ( Meritor, 477 U.S. at 65). Rushing urges that because of Montes' repeated requests for oral sex, the work environment in the air freight area was hostile for Rushing.
Defendants quite predictably argue that although Montes' behavior was inappropriate and unprofessional, it was not sexual harassment. Instead United claims it was "street talk" in which both Montes and Rushing participated. Although it is doubtful that the hostile environment issue could be decided on a motion for summary judgment, that is another issue that this opinion can eschew. Why? Because even on the assumption that there was a hostile environment, it is clear that United took prompt and reasonable steps that remedied the problem as soon as United became aware of it. Hence United cannot be held liable under Title VII.
In applying the hostile environment concept, Title VII does not impose strict liability on an employer for sexual harassment committed by its employee ( Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990)). Instead the question of liability vel non is decided under negligence principles
( Saxton, 10 F.3d at 535, quoting Guess, 913 F.2d at 465):
It is a negligence standard that closely resembles the "fellow servant" rule, from the era when industrial accidents were governed by negligence rather than workers' compensation law. Under that rule, as under Title VII, the employer, provided it has used due care in hiring the offending employee in the first place,
is liable for that employee's torts against a coworker only if, knowing or having reason to know of the misconduct, the employer unreasonably fails to take appropriate corrective action. The employer acts unreasonably either if it delays unduly or if the action it does take, however promptly, is not reasonably likely to prevent the conduct from recurring.