In reviewing the Court's decision last week in Akers v. Cabell Huntington Hosp., Inc. No. 31586 (May 27, 2004), a question was raised in my mind about the status of an employer's liability for sexual harassment by a supervisor.
For the most part, our State Supreme Court has followed the United States Supreme Court in the area of sexual harassment. The West Virginia Human Rights Act is very similar in language and purpose to Title VII, and the decision was made some time ago to interpret it consistently with Title VII wherever possible. Consistency in this area of the law is extremely important because sexual harassment still proves to be a thorny issue for employers and employees alike.
In two 1998 decisions, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the United States Supreme Court developed one set of criteria to determine an employer's vicarious liability under Title VII:
(1) The employer is always liable for quid pro quo harassment;
(2) The employer is assumed to be liable for hostile environment harassment, unless the employer can demonstrate (as an affirmative defense) both that the employer took reasonable care to prevent and correct any sexually harassing behavior and that the harassed employee unreasonably failed to take advantage of the employer's preventive or correctional tools (such as an internal grievance procedure).
Although these decisions have been cited by the West Virginia Supreme Court, it has yet to formally endorse the Burlington/Faragher affirmative defense.
The Akers case involved sexual harassment by a supervisor. It is a hostile environment claim, not a quid pro quo claim. (The Court notes at one point that the plaintiff's job duties were modified, but her "wage rate, benefits, and hours of employment remained the same." Quid pro quo harassment requires a tangible employment action such as hiring, firing, failing to promote, etc., and minor changes in job duties without decreases in compensation and benefits usually is insufficient.) Yet the Court states in a conclusory fashion "[b]ecause the conduct at issue was that of a Hospital supervisor, there is no difficulty imputing Mr. Ball's alleged conduct to the Hospital." This, of course, is the fourth prong of a prima facie case of sexual harassment under syllabus point five of Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995). Yet no discussion is made of whether the employer can raise the Burlington/Ellerth defense to avoid liability for this man's conduct. As this case is being remanded for another trial, wouldn't it have been helpful to have some guidance on this point? And how does the affirmative defense square with the new Syllabus Point 5 of Akers that
Once a plaintiff in a sexual harassment case introduces evidence that demonstrates the four elements set forth in syllabus point five of Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995), he/she has proven a prima facie case of sexual harassment, which must then be presented to the jury.
What if the employer establishes on cross examination of the Plaintiff that the Plaintiff knew about the sexual harassment policy, received a copy of it, understood its purpose, but chose to ignore it anyway? Does the case still have to go to the jury?
I suppose it could be that the Defendant in this case did not raise the Burlington/Ellerth defense, so the Court did not address it. Maybe Justice Starcher or Justice Maynard will address the issue in their separate opinions.
The points of law the court did address in Akers are as follows:
6. A statutory claim brought under the West Virginia Human Rights Acts, W.Va. Code §§ 5-11-1 to -21 (Repl. Vol. 2002), to establish sexual harassment does not require proof of psychological injury.
7. Lay or expert testimony that the plaintiff in a sexual harassment case suffered resulting mental anguish, aggravation, inconvenience, humiliation, embarrassment, or loss of dignity will support an award by the jury or other fact finder of incidental noneconomic damages.
8. Where a plaintiff in a sexual harassment action seeks to prove a specific medical or psychological condition that falls within either the discipline of psychiatry or psychology, the qualification of a proffered expert witness to testify for the purpose of connecting the alleged sexual harassment to the specific medical or psychological condition will be determined based upon the nature and extent of the witness's education, training, and expertise.
I don't have a problem with syllabus points 6 and 7. And I don't really have any problem with a "no medical degree, no problem rule" to some extent. Afterall, clinical psychologists lack a medical degree, but have doctorate level degrees from APA approved clinical psychology graduate programs. The glaring problem with this opinion is that the Court does not distinguish between clinical psychologists and garden variety counseling psychologists with bachelor's degrees.
The difference between a clinical psychologist and a counseling psychologist is like the difference between a physician's assistant and a physician or a paralegal and a lawyer. Fortunately, the Court did not conclude that the counseling psychologist in this case was competent to testify that the plaintiff's psychological disorders were connected to the supervisor's sexual harassment. However, by holding that any "psychologist" might be competent to testify on such issues, the Court left the door wide open. (The W.Va. Employment Lawyer's association apparently wrote an amicus brief urging the court to allow counseling psychologists to offer such testimony.) This is certain to create mischief. I foresee every sexual harassment plaintiff in West Virginia going to their local psychologist to get "diagnosed" with PTSD to bolster their damages claim. This will, of course, only increase the cost of litigation for employers, who will feel compelled to offer a true expert clinical psychologist or psychiatrist to refute the claims.