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E.E.O.C. v. MITSUBISHI MOTOR MFG. OF AMERICA

January 20, 1998

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
v.
MITSUBISHI MOTOR MANUFACTURING OF AMERICA, INC., F/K/A "DIAMOND-STAR MOTORS CORPORATION," DEFENDANT.



The opinion of the court was delivered by: McDADE, District Judge.

                ORDER

This is a civil pattern or practice action filed pursuant to §§ 706 and 707 of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq., by the Equal Employment Opportunity Commission ("EEOC") against Mitsubishi Motor Manufacturing of America, Inc. ("Mitsubishi"), alleging that Mitsubishi is liable for hostile work environment sexual harassment, quid pro quo sexual harassment, gender discrimination, retaliation, and constructive discharge at its auto assembly plant located in Normal, Illinois. The Complaint requests the following relief: a permanent injunction enjoining Mitsubishi from continuing its prohibited activities; a mandatory injunction requiring Mitsubishi to adhere to certain equal employment policies; and compensatory damages for the victims including backpay, reinstatement, past and future pecuniary and nonpecuniary losses; punitive damages; prejudgment interest; and costs.

There are two motions currently before the Court: Mitsubishi's Motion for Partial Summary Judgment (Doc. # 78-1); and the EEOC's Motion for Leave to File an Amended Complaint (Doc. # 93-1). The Court's discussion of these motions proceeds in two parts. Part I addresses the limited legal question*fn1 presented by Mitsubishi's motion for partial summary judgment.*fn2 Part II addresses the procedural questions presented by Mitsubishi's motion*fn3 and the EEOC's motion for leave to file an Amended Complaint, which seeks to cure the procedural deficiencies raised by Mitsubishi's motion.

DISCUSSION

I. The Legal Question

The principal legal question presented by Mitsubishi, whether a pattern or practice action can be brought for sexual harassment claims, requires the Court to grapple with the essential principles that animate Title VII. This has not been an easy task, but it is one which the Court recognizes as a privilege. To the Court's knowledge, this is the first time that this legal question has ever been raised. After careful consideration of the parties' arguments and the relevant case law, this Court finds that a pattern or practice action for sexual harassment is authorized by Title VII and can be brought by the EEOC, both as a legal matter and in this case.

The EEOC seeks to hold Mitsubishi liable for a pattern or practice of hostile environment and quid pro quo sexual harassment. The pattern or practice theory is that Mitsubishi created and maintained a sexually hostile and abusive work environment at its Normal, Illinois, auto assembly facility because it tolerated, from the facility's inception, individual acts of sexual harassment by its employees by refusing to take notice of, investigate, and/or discipline the workers who sexually harassed other employees. As a consequence, the EEOC argues that Mitsubishi's "standard operating procedure — its regular rather than unusual practice" — was to ignore most (if not all) of its female employees' complaints that they were individually, or as a group, being subjected to a sexually hostile and abusive environment, in violation of Title VII, based upon: unwelcome sexual advances, demands for sexual favors, and other offensive verbal and physical conduct of a sexual nature.

If such a "standard operating procedure" of unlawful tolerance within the company's confines exists, it constitutes a "pattern and practice" of sexual harassment. Pattern or practice liability, rather than liability for individual conduct, is the primary focus of the EEOC's case. The EEOC argues, however, that the evidence which establishes a pattern or practice of sexual harassment by the company goes at least half the distance toward establishing the individual cases of sexual harassment brought by the class members, because it establishes the objective portion of their case. According to the EEOC, the pattern or practice case for injunctive relief, therefore, can and should be tried together with the individual claims for relief that stem from this pattern or practice.

Mitsubishi disagrees. In fact, Mitsubishi argues that proving a pattern or practice of sexual harassment simply cannot be done, because the gravamen of a sexual harassment claim, as it has been defined by the United States Supreme Court in Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) and Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), is that the allegedly offensive conduct was subjectively unwelcome.*fn4 At first glance, this argument may appear to have some merit; but, in reality, the argument constitutes the proverbial "straw man." Although it is true that Meritor and Harris require individuals, in an individual case of sexual harassment, to prove that the conduct they experienced was subjectively unwelcome, this is not an individual case; it is a pattern or practice case, and the rules of engagement in this context are different. The Meritor and Harris cases involved individual charges of sex discrimination alleging individual acts of sexual harassment. They were not and did not purport to be pattern or practice cases, and the holdings regarding the proofs necessary to establish an individual case of sexual harassment must, accordingly, be modified.

To scrap the entire pattern or practice case, as Mitsubishi would have us do, would ignore the statutory base for bringing Title VII actions for sex discrimination. Sexual harassment is a form of sex discrimination. Therefore, Title VII authorizes a pattern or practice suit for sexual harassment. This Court has concluded that a pattern or practice case for sexual harassment can be brought and maintained by the EEOC on behalf of the public for injunctive relief under §§ 706 and 707 of Title VII, based solely on an objective showing of the employer's unlawful pattern or practice. A pattern or practice case seeks to eradicate systemic, company-wide discrimination and focuses on an objectively verifiable policy or practice of discrimination by a private employer against its employees. To establish an unlawful pattern or practice, there is no need for the individual, subjective showings required by Meritor and Harris and, thus, no need for an employer's individual defenses. Once pattern or practice liability is established, individual relief is possible for the victims of an unlawful pattern or practice if these individuals can satisfy the subjective showings required by Meritor and Harris. As part of the individual relief phase, this Court believes that the victims of an unlawful pattern or practice are entitled to a presumption in their favor. The rationale for these conclusions and the methods of proof for such a case follow. Our analysis is broken down, as the case will be, into the "pattern or practice" phase and the "individual relief" phase.

A. The Pattern or Practice Case — Phase I

The question in this case, then, is not whether a pattern or practice action for sexual harassment can be brought at all, but rather how such a pattern or practice case can be tried and proven, given the unique element of subjectivity found in a sexual harassment claim. Questions of proof are the questions that this Court has spent a considerable amount of time trying to satisfactorily resolve. These questions are not easy ones. The pattern or practice model established in Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), which works for every other form of prohibited discrimination under Title VII, breaks down for sexual harassment claims, as Mitsubishi suggests, because the two seminal cases defining the essence of a claim of sexual harassment — Meritor and Harris — require consideration of individual issues and defenses particular to an individual claimant.

In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the United States Supreme Court first recognized that a "hostile or abusive work environment" may constitute sex discrimination under Title VII. Id. 477 U.S. at 66. In Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the Court found that a discriminatorily hostile or abusive environment exists "[w]hen the workplace is permeated with `discriminatory intimidation, ridicule, and insult,' which is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Id. 510 U.S. at 21 (quoting Meritor, 477 U.S. at 67).

Determination of whether harassing conduct creates a hostile environment "sufficiently severe or pervasive [enough] to alter the conditions of the victim's employment" requires the trier of fact to view the conduct in light of the record as a whole and the totality of the circumstances. Meritor, 477 U.S. at 69 (citing 29 C.F.R. § 1604.11(b)). In reviewing the record, the trier of fact must answer two main questions: (1) was the complainant, "because of her sex, subjected to such hostile, intimidating, or degrading behavior, verbal or nonverbal, as to affect adversely the conditions under which she worked[,]" and, if so, (2) was "the defendant's response or lack thereof to its employees' behavior . . . negligent." Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1009 (7th Cir. 1994).

The first question requires the trier of fact to determine the severity or pervasiveness of the particular conduct at issue by testing it against both an objective and a subjective component. In other words, the trier of fact must find both that an objectively reasonable person would find the environment hostile and that the victim, herself, subjectively perceived the environment as hostile. Harris, 510 U.S. at 21-22. The objective showing operates as a limitation on the subjective assertions of the claimant by requiring that the claimant's individual perceptions fall within a range that the reasonable person can understand. However, the gravamen of any sexual harassment claim is that the claimant, herself, personally found the alleged sexual advances "unwelcome." Meritor, 477 U.S. at 68. If "the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is not a Title VII violation." Harris, 510 U.S. at 21-22. However, there is no requirement of tangible economic consequences or psychological injury. Id. In order to establish a subjective perception of abuse, the charging party must only testify that she found the alleged conduct to be hostile or abusive at the time it occurred because she did not solicit or incite it, and she regarded the conduct as undesirable or offensive. Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982). Unless the respondent produces evidence to the contrary, the subjective prong of the analysis will be satisfied. Id.

The second question, the employer's negligence, is equally fact-specific. In general, an employer can be held negligent if it knows or should have known about the harassing conduct. Jansen v. Packaging Corp. of Am., and Ellerth v. Burlington Indus., 123 F.3d 490, 494-495 (7th Cir. 1997) ("Jansen") (per curiam) (stating that the "law of the circuit" in these cases is "negligence, not strict liability."). In fact, "[a] plaintiff has no duty under the law to complain about discriminatory harassment, but the employer . . . will not be liable if it had no reason to know about it. Nor does a plaintiff have a legal duty to cooperate with the employer's investigation; but the reasonableness of the employer's attempts to rectify harassment is measured against how much it knows or should have known." Perry v. Chernin, 126 F.3d 1010, 1015 (7th Cir. 1997).

The negligence requirement incorporates the necessity of notice to the employer, since without notice there cannot be negligence. Id. at 1013 (imposing liability without notice would constitute strict liability to the employer, which was rejected in Jansen). See also Zimmerman v. Cook County Sheriff's Dep't., 96 F.3d 1017, 1019 (7th Cir. 1996) (If "the only possible source of notice to the employer . . . is the employee who is being harassed," she must present evidence "that she gave the employer enough information to make a reasonable employer think there was some probability that she was being sexually harassed."). An employer is said to be on notice when information about the harassment comes to the attention of someone who either has the power to do something about it or who has — or can reasonably be believed to have — "a duty to pass on the information to someone within the company" who does. See Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir. 1997). However (and this is an important "however"), "[i]f the harassment is pervasive [as it certainly must be in a pattern or practice case] it can be presumed, subject . . . to rebuttal, to have come to the attention of someone authorized to do something about it." Id. (emphasis added). "In either case," says the Seventh Circuit, "the enterprise has a reasonable chance of being able to respond to the information, whether it is information that it is being sued or information that subordinate employees are committing criminal or tortious acts." Id.

These concerns are also present in quid pro quo cases of sexual harassment. Quid pro quo sexual harassment describes situations in which submission to sexual demands is made a condition of tangible employment benefits. Henson v. City of Dundee, 682 F.2d 897, 911 (11th Cir. 1982); Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 461 (7th Cir. 1990). "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual[.]" 29 C.F.R. § 1604.11(a) (1997). The proof required to establish quid pro quo sexual harassment is the same as that required for a hostile environment claim except that the employee, instead of showing that her work environment was pervaded by severe harassment, must show that "the employee's submission to the unwelcome advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to the supervisor's sexual demands resulted in a tangible job detriment[.]" Kauffman v. Allied Signal, Inc., 970 F.2d 178, 186 (6th Cir. 1992). However, in the situation where the victim submitted to the request for sexual favors, she need not show any tangible economic harm to state a claim for quid pro quo harassment. Karibian v. Columbia Univ., 14 F.3d 773, 778-79 (2d Cir. 1994).

Thus, under either type of harassment, there is both an objective and a subjective component of the claim. To prevail, the plaintiff must establish: (1) that she personally was adversely affected by the conduct, and (2) that a reasonable person would also have been adversely affected. Rennie v. Dalton, 3 F.3d 1100, 1107 (7th Cir. 1993). In addition, for the employer to be liable, the plaintiff must establish both that the employer had notice of the harassment and was negligent in taking corrective action. See generally Jansen, 123 F.3d at 493-94; Perry, 126 F.3d at 1013.

Although these two theories of liability involve different conduct,

  [v]ictims of quid pro quo harassment often suffer a
  hostile environment. Indeed, the quid pro quo
  concept, in its widest reach, could include any
  situation in which individuals must accept a
  gender-hostile environment in order to enjoy the
  tangible benefits of their jobs. Similarly, victims
  of hostile environments often suffer the tangible job
  detriments associated with quid pro quo harassment. A
  hostile environment may drive employees off the job,
  demoralize or upset them to the extent that they are
  fired for absenteeism or unsatisfactory work, or
  cause them to complain about the harassment and risk
  retaliatory discharge.

See e.g., BARBARA LINDEMANN & DAVID D. KADUE, SEXUAL HARASSMENT IN EMPLOYMENT LAW 8-9 (1992). Consequently, the proof offered to establish a hostile environment case may also serve to establish a quid pro quo case of sexual harassment.

This Court believes that the overlap in proof is especially relevant in a pattern or practice case, such as this one, which alleges both theories. The overlap in proof is relevant, in part, because the Meritor and Harris decisions — which require consideration of subjective elements — do not purport to address the method of proof in pattern or practice cases, as opposed to individual cases. Consequently, a pattern or practice case alleging either theory will follow the same format.

In a pattern or practice case brought by the EEOC for injunctive relief, it is not really necessary or appropriate to consider the subjective issues of individuals. If a company engages in a pattern or practice which is proved by an objective test, and the company is negligent in preventing it, then the EEOC can and should be able to obtain injunctive relief, regardless of whether some of the individuals may have no subjective objection to the harassing conduct (i.e., the conduct may be welcome to some). The Meritor and Harris decisions do not address these issues, and this Court believes that the teachings of Meritor and Harris are not intended to apply lockstep in a case such as this one. The law, therefore, must be that at the pattern or practice phase, subjective proofs are not necessary and should not be considered to find a pattern or practice of sexual harassment.

The framework for the pattern or practice case that this Court has conceived is divided into phases, like the Teamsters model. See 431 U.S. at 360-62. In an effort to organize the controlling principles of law, the Court has organized its discussion by providing both a method of proof and a rationale section for each phase. The Court's conclusions of law are set forth below.

1. Method of Proof

In Phase I, the pattern or practice phase, the EEOC will be permitted to establish a pattern or practice of sexual harassment by proving, by a preponderance of the evidence, that an objectively reasonable person would find the existence of: (1) a hostile environment of sexual harassment within the company (a hostile environment pattern or practice) or a situation where individuals within the workplace, as a whole, must accept a gender-hostile environment to enjoy the tangible benefits of their jobs (a quid pro quo pattern or practice); and (2) a company policy of tolerating (and therefore condoning and/or fostering) a workforce permeated with severe and pervasive sexual harassment. Determining whether a hostile environment exists (for purposes of establishing hostile environment or quid pro quo harassment), in a pattern or practice case, must be done by the trier of fact in light of the totality of the circumstances.

  Under the totality of the circumstances analysis the
  district court should not carve the environment into
  a series of discrete incidents and then measure the
  harm occurring in each episode. Instead, the trier of
  fact must keep in mind that "each successive episode
  has its predecessors, that the impact of the separate
  incidents may accumulate, and that the work
  environment [thereby] [sic] created may exceed the
  sum of the individual episodes."

See Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 885 (D.Minn. 1993) (quoting Burns v. McGregor Electronic Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992) and Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1524 (M.D.Fla. 1991)). See also Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990) ("A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents but on the overall scenario."). Accordingly, the landscape of the total work environment, rather than the subjective experiences of each individual claimant, is the focus for establishing a pattern or practice of unwelcome*fn5 sexual harassment which is severe and pervasive.*fn6 The existence of a company's policy of tolerating sexual harassment is the basis for pattern or practice liability. Tolerance of sexual harassment permits rampant discrimination to take place. If, based on the sum of the individual testimony by the class, the trier of fact determines that an objectively reasonable person would have to spend the work day running a "gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living[,]" Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982)), then a finding that sexual harassment is occurring in the workplace is justified.

The company's pattern or practice of tolerating such harassment, however, will require an additional showing of the company's notice and negligence.*fn7 When harassing behavior occurs frequently enough and is both common and continuous, a company can reasonably be said to be on "notice" of a severe and pervasive problem of sexual harassment that constitutes a hostile environment. See Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir. 1997) ("If the harassment is pervasive, it can be presumed, subject we imagine to rebuttal, to have come to the attention of someone authorized to do something about it."); Jenson, 824 F. Supp. at 886 (when sexual harassment is "pervasive," the pervasive nature of the problem "gives rise to an inference of knowledge or constructive knowledge."); Robinson, 760 F. Supp. at 1531 ("an employer incurs liability when harassing behavior happens frequently enough that the employer can take steps to halt it."). In addition, evidence that many of a company's first-line supervisors had actual knowledge of the harassing behaviors (some of them may have participated in the harassment and others may have simply worked closely with those who did), would be sufficient under Young to hold that the company had notice of sexual harassment within the plant, if these supervisors had a duty or reasonably could be believed to have such a duty, under the company's sexual harassment policy, to "pass on the information to someone within the company who has the power to do something about it." 123 F.3d at 674.

The negligence analysis is the same. An employer can be said to be negligent for company-wide sexual harassment when it has a policy or practice of tolerating a work environment that it knows or should have known is permeated with sexual harassment, but does not take steps to address the problem on a company-wide basis. The assertion that it may have investigated individual cases of sexual harassment will not be a defense to pattern or practice liability. Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 887 (D.Minn. 1993). A systemic remedy is necessary to correct a company-wide problem.*fn8 "Situation-specific" responses will not suffice. Id. Steps must be taken to determine whether individual incidents, which occur frequently and continuously, are "indicative of a larger problem requiring a company wide response." Id. (citing Rauh v. Coyne, 744 F. Supp. 1186, 1189 (D.D.C. 1990)). In Bundy v. Jackson, 641 F.2d 934 (D.C.Cir. 1981), the District of Columbia Circuit Court of Appeals found that when an employer knows of sexual harassment, it "should promptly take all necessary steps to investigate and correct any harassment, including warnings and appropriate discipline directed at the offending party, and should generally develop other means of preventing harassment within the [organization]." Id. at 947.*fn9 The Bundy approach works well in a pattern or practice case, because it recognizes the distinction between "situation-specific" remedies, which do not address the company-wide problem, and company-wide remedies which are directed at eradicating the discriminatory policy and the effects of that policy. In a pattern or practice case, an employer must take company-wide action to establish that it has not been negligent.

The "effectiveness" of the remedial action, however, is also relevant to the negligence analysis. In Robinson v. Jacksonville Shipyards, Inc., the district court found that although the employer in that case "did respond to some aspects of the sexually hostile work environment, the effectiveness of its response must be evaluated." 760 F. Supp. at 1531. The Robinson court then outlined the two methods of measuring effectiveness that have received endorsement. Id.

Id. (internal citations omitted).

In short, to find that an employer was "negligent" in a pattern or practice case, the EEOC must show that the employer had notice, failed to take steps to remedy the company-wide problem of harassment that it knew or should have known about, and, if it took steps, failed to take effective steps. Such a showing should be sufficient to establish a "policy" of tolerance by the company toward sexual harassment that would justify a finding of pattern or practice liability, so long as the other objective showings necessary to establish the existence of severe and pervasive harassment on a wide-scale basis are in place.

2. Rationale

The Court's rationale for eliminating the subjective proofs necessary in an individual action at the pattern or practice phase is quite simple. Sexual harassment claims involve individual questions and defenses which cannot be tried, as to the class,*fn10 on common issues of liability. This is the problem and the solution.

A pattern or practice case can be established without the subjective showings required by Meritor and Harris. In fact, to require subjective showings would needlessly conflate the proofs necessary to establish a pattern or practice with those necessary to establish individual liability for sexual harassment. Such conflation would cause confusion and essentially undermine the goals of a pattern or practice case. Meritor and Harris, with their focus on an individual action of discrimination, did not address pattern or practice liability and, therefore, were not called upon to recognize that the purpose of a pattern or practice case is different than the goal of an individual action. This Court, therefore, concludes that Meritor and Harris do not apply lockstep to a pattern or practice case for sexual harassment.

In a pattern or practice case, the EEOC acts both for the benefit of specific individuals who are subject to discrimination by the employer and "to vindicate the public interest in preventing employment discrimination." General Tel. Co. of the Northwest, Inc. v. E.E.O.C., 446 U.S. 318, 326, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980) (footnote omitted). The goal of vindicating the public's interest in eradicating systemic discrimination by private employers is central to the purpose of a pattern or practice action. In such an action, the EEOC seeks to impose pattern or practice liability upon an employer who violates Title VII on a system-wide basis to enjoin the employer's discriminatory practices. Individual relief is permitted once pattern or practice liability is established, but, it is not the central or the initial focus of a pattern or practice case. Individual issues, therefore, are not even relevant until the individual relief stage — a stage which occurs ...


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