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COMMENT The Court of Appeals has made clear that sexual harassment can give rise to an equal protection claim. It has also indicated that the elements of such a claim are not identical to those of a Title VII harassment claim (at least if the claim proceeds on a hostile environment theory). It has not, however, specified precisely the elements of an equal protection claim for hostile environment sexual harassment. This Comment discusses principles that can be drawn from relevant Third Circuit cases.

Discriminatory intent.

As noted above, equal protection claims require a showing of discriminatory intent. Sexual harassment claims can meet that requirement. See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469, 1478-79 (3d Cir. 1990) (upholding verdict for plaintiff on sexual harassment claims against city employees, based on conclusion that evidence supported finding of purposeful discrimination); cf. Meritor Savings Bank v. Vinson, 477 U.S. 57, 64 (1986) (stating in Title VII case that “[w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor ‘discriminate[s]’ on the basis of sex”); Azzaro v. County of Allegheny, 110 F.3d 968, 978 (3d Cir. 1997) (en banc) (in assessing retaliation claim, explaining that “[t]he harassment [reported by the plaintiff] was a form of gender discrimination since Fusaro presumably would not have behaved in the same manner toward a supplicant male spouse of a female employee.”).17

The requirement of action under color of state law.

To establish a Section 1983 claim against an alleged harasser, the plaintiff must show that the defendant acted under color of state law. The Court of Appeals has suggested that this requires the defendant to have some measure of control or authority over the plaintiff. See Bonenberger v. Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997) (“Under these circumstances La Penta's role within the departmental structure afforded him sufficient authority over Bonenberger to satisfy the color of law requirement of section 1983.”).18 However, the Court of Appeals has made clear that this requirement can be met even if the defendant is not the plaintiff’s formal supervisor: “A state employee may, under certain circumstances, wield considerable control over a subordinate whose work he regularly supervises, even if he does not hire, fire, or issue regular evaluations of her work.” Bonenberger, 132 F.3d at 23.

Quid pro quo claims where adverse employment action follows.

There appear to be commonalities between Title VII and Section 1983 quid pro quo claims where adverse employment action follows. See, e.g., Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296-99 & n.14 (3d Cir. 1997) (discussing merits of Title VII quid pro quo claim at length and briefly stating in footnote that “our discussion in this section applies equally to” a Section 1983 quid pro quo claim by the plaintiff), abrogated on other grounds by Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The instruction for such a Section 1983 claim would probably be quite similar, in most respects, to Instruction As noted above, a Section 1983 plaintiff must show that the defendant acted under color of state law. The plaintiff can make that showing by demonstrating that the defendant exercised authority over the plaintiff. If the plaintiff shows that the defendant took an adverse employment action20 against the plaintiff, that evidence should also establish that the defendant acted under color of state law.21

Hostile environment claims.

The Court of Appeals has indicated that the elements of a hostile work environment claim under Section 1983 are not identical to those of a claim under Title VII.22 In Andrews v. City of Philadelphia, the court enumerated five elements “for a sexually hostile work environment [claim] under Title VII:

(1) the employees suffered intentional discrimination because of their sex;

(2) the discrimination was pervasive and regular;

(3) the discrimination detrimentally affected the plaintiff;

(4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and

(5) the existence of respondeat superior liability.”

Andrews, 895 F.2d at 1482.

The Section 1983 claim in Andrews had been tried to a jury while the Title VII claim had not, and the court was faced with the question of what effect the jury determinations on the Section 1983 claims should have on the court’s resolution of the Title VII claims. The court stated: Section 1983 and Title VII claims are complex actions with different elements. Proof of some of these elements, particularly discrimination based upon sex and subjective harm is identical, and thus the court should be bound by the jury's determination on these issues. Other elements, particularly the objective element of the Title VII claim, are uniquely Title VII elements, and although the judge's decision here may be affected by certain findings of the jury, they are ultimately a decision of the court. Andrews, 895 F.2d at 1483 n.4.

Andrews, then, made clear that the elements of hostile environment claims under Title VII and under the Equal Protection Clause are not identical. But Andrews did not specify the elements of the latter type of claim. Moreover, Andrews cannot currently be taken as an authoritative statement of Title VII hostile-environment law,23 and it is unclear how an equal protection hostile environment claim should be affected, if at all, by later developments in sexual harassment law under Title VII. The paragraphs that follow, however, attempt to draw together existing Third Circuit doctrine on equal protection hostile environment claims. As noted above, a defendant who subjects a plaintiff to harassment on the basis of a protected characteristic is guilty of intentional discrimination. If that defendant acted under color of state law, then he or she violated the Equal Protection Clause and may be liable under Section 1983.24 In addition, the normal rules of supervisory and municipal liability apply in order to determine whether the harasser’s supervisor and/or municipal employer are liable under Section 1983 for the harasser’s equal protection violation.25 A subtler question arises if the harasser did not act under color of state law. As noted above, the Court of Appeals has indicated that a co-worker who lacks any control or authority over the plaintiff does not act under color of state law.26 In such a case, the harasser apparently would not have committed an equal protection violation, which would mean that the harasser’s supervisor (or the municipal employer) could be held liable under Section 1983 only if the supervisor defendant (or the municipal defendant) committed an equal protection violation. That raises the question of what level of action or indifference suffices to show intent to discriminate on the part of the supervisor or the municipality. A plaintiff can show an equal protection violation by a supervisor who fails properly to address harassment by the plaintiff’s co-workers, if the supervisor acted with intent to discriminate. For example, in Andrews, evidence justifying findings that one plaintiff’s supervisor was aware of sexual harassment by the plaintiff’s “male colleagues” and that the supervisor’s failure “to investigate the source of the problem implicitly encouraged squad members to continue in their abuse” of the plaintiff provided an alternate ground for upholding the verdict for the plaintiff on the Section 1983 equal protection claim against her supervisor. Andrews, 895 F.2d at 1479. Similarly, the Andrews court sustained the jury verdict for the plaintiffs on their Section 1983 equal protection claims against the commanding officer of their division, based on evidence that would support a finding that he “acquiesced in the sexual discrimination against” the plaintiffs. Id. The Court of Appeals reasoned: There is evidence that Liciardello was aware of the problems concerning foul language and pornographic materials but did nothing to stop them. The language and the pictures were so offensive and regular that they could not have gone unnoticed by the man who was ultimately responsible for the conduct of the Division. He took no measures to investigate the missing case problems which Conn and Andrews, but none of the male officers, suffered. Additionally, he provided an important insight to his personal "boys will be boys attitude" toward sex-based harassment when he cautioned Conn, "You have to expect this working with the guys." Andrews, 895 F.2d at 1479. Thus, it would seem that an equal protection claim under Section 1983 arises if the harassment that gives rise to a hostile environment claim is

(1) committed or caused by one with formal or de facto supervisory authority or (2) improperly addressed by one with formal or de facto supervisory authority under circumstances that show that the supervisory individual had an intent to discriminate.

Similarly, it would seem that a municipal employer can be liable on the theory that it directly encouraged harassment of the plaintiff, or on the theory that it did not do enough to prevent the harassment.27

(Last Updated July 2019)


17 See also Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1185 (7th Cir. 1986) (“Sexual harassment of female employees by a state employer constitutes sex discrimination for purposes of the equal protection clause of the fourteenth amendment.”); Cheryl L. Anderson, "Nothing Personal:" Individual Liability under 42 U.S.C. § 1983 for Sexual Harassment as an Equal Protection Claim, 19 BERKELEY J. EMP. & LAB. L. 60, 80 (1998) (citing Meritor Savings Bank as support for argument that sex harassment can satisfy the intentional discrimination requirement for equal protection claims).
18 The Bonenberger court noted that “a state employee who pursues purely private motives and whose interaction with the victim is unconnected with his execution of official duties does not act under color of law.” Bonenberger, 132 F.3d at 24. It could be argued that when a co-worker who lacks even de facto supervisory authority over the plaintiff takes advantage of the plaintiff’s presence in the workplace in order to subject the plaintiff to harassment, the harassment is connected with the defendant’s execution of official duties in the sense that those duties provide the defendant with an otherwise unavailable opportunity to harass. However, the Bonenberger court’s emphasis on whether the defendant had “control” or “authority” over the plaintiff, see id. at 23-24, suggests that the Court of Appeals would not necessarily embrace this expansive an interpretation of action under color of state law.
19 Obviously, the prefatory language would be different, and the instruction would need to take account of the relevant theories of supervisory and municipal liability (see supra Instructions 4.6.1, 4.6.3 - 4.6.8).
20 Cf. Instruction 5.1.3 (defining “tangible employment action” for purposes of Title VII harassment claims).
21 Cf. Bonenberger, 132 F.3d at 28 (“Title VII quid pro quo sexual harassment generally requires that the harasser have authority to carry out the quid pro quo offer or threat.”).
22 Some other courts have noted differences as well. For example, the Seventh Circuit Court of Appeals has stated that on an equal protection claim “the ultimate inquiry is whether the sexual harassment constitutes intentional discrimination. This differs from the inquiry under Title VII as to whether or not the sexual harassment altered the conditions of the victim's employment.” Bohen, 799 F.2d at 1187; see also Ascolese v. Southeastern Pennsylvania Transp. Authority, 902 F. Supp. 533, 547 (E.D. Pa. 1995) (“Because the analysis under section 1983 focuses on intentional discrimination, it differs from that under Title VII, in which the focus is on whether or not the sexual harassment altered the conditions of the victim's employment.”) (citing Bohen).

On the other hand, some courts have indicated that the elements of Section 1983 sexual harassment claims mirror those of claims brought under Title VII. See, e.g., Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir. 2003) (applying elements of Title VII claim to Section 1983 harassment claim); cf. Ascolese, 902 F. Supp. at 548 (drawing upon Title VII caselaw concerning sexual harassment in order to address Section 1983 sexual harassment claim, while acknowledging that the Title VII precedent “does not apply directly”).

23 Thus, for example, instead of applying the Andrews “pervasive and regular” test, more recent Third Circuit caselaw recognizes that courts analyzing Title VII hostile-environment claims should look to whether the conduct in question was “severe or pervasive.” Castleberry v. STI Grp., 863 F.3d 259, 263-64 (3d Cir. 2017) (a section 1981 employment case applying Title VII analysis, acknowledging the court’s inconsistent precedent regarding what is needed to prevail on a harassment or hostile work environment claim, and clarifying that the correct standard is “severe or pervasive”) (emphasis in original). See Comment 5.1.4.
24 See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (holding that jury verdict for plaintiff on Section 1983 equal protection claim against plaintiff’s supervisor could be sustained on the ground that the supervisor “personally participated in” the sexual harassment of the plaintiff).
25 See, e.g., Bonenberger, 132 F.3d at 25 (applying municipal liability doctrine in case involving alleged harassment by officer with de facto supervisory authority); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d Cir. 1997) (in case involving alleged harassment by plaintiff’s supervisor, applying supervisory liability doctrines to claims against police chief and assistant police chief).
26 See Zelinski v. Pennsylvania State Police, 108 Fed. Appx. 700, 703 (3d Cir. 2004) (non-precedential opinion) (holding that defendant did not act under color of law when committing alleged harassment because he had neither formal nor de facto supervisory authority over plaintiff).

By contrast, the conclusion that the alleged harasser did not act under color of state law would not preclude Title VII liability for the employer. See, e.g., Zelinski, 108 Fed.Appx. at 704 (holding that district court should not have granted summary judgment dismissing Title VII harassment claim).

27 See Bohen, 799 F.2d at 1187 (“[A] plaintiff can make an ultimate showing of sex discrimination either by showing that sexual harassment that is attributable to the employer under § 1983 amounted to intentional sex discrimination or by showing that the conscious failure of the employer to protect the plaintiff from the abusive conditions created by fellow employees amounted to intentional discrimination.”); cf. Reynolds v. Borough of Avalon, 799 F. Supp. 442, 447 (D.N.J. 1992) (holding that “a reasonable jury might find that the risk of sexual harassment in the workplace is so obvious that an employer's failure to take action to prevent or stop it from occurring — even in the absence of actual knowledge of its occurrence — constitutes deliberate indifference, where the employer has also failed to take any steps to encourage the reporting of such incidents”).

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