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Brown v. Scott Paper Worldwide Co.12/13/1999
ry's determination that Scott Paper did not discriminate against Brown effectively determines that Scott Paper's employees did not discriminate against Brown." Respondents' Brief at 43. In support, the managers cite the Restatement (Second) of Judgments sec. 51:
If two persons have a relationship such that one of them is vicariously responsible for the conduct of the other, and an action is brought by the injured person against one of them, . . .
(1) A judgment against the injured person that bars him from reasserting his claim against the defendant in the first action extinguishes any claim he has against the other person . . . unless:
(a) The claim asserted in the second action is based upon grounds that could not have been asserted against the defendant in the first action; or
(b) The judgment in the first action was based on a defense that was personal to the defendant in the first action.
We agree that this section of the Restatement is applicable, but it does not help the individual managers.
To prevail on a sexual harassment claim against an employer for its supervisors or employees' misconduct, the plaintiff must prove that the employer knew or should have known about the harassment and failed to take reasonably prompt and corrective action. This may be shown by proving that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the workplace as to raise an inference of the employer's knowledge or constructive knowledge and that the employer's remedial action was not of a nature as to have been reasonably calculated to end the harassment. Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406, 693 P.2d 708 (1985).
But to prevail in a claim against an individual supervisor, a plaintiff need only establish that the supervisor, while acting as an employer under RCW 49.60.040, sexually harassed the employee she need not also prove that the overall employer knew or should have known about the harassment and failed to take remedial action reasonably calculated to end the harassment. These are two distinct causes of action. Given the various defenses presented by Scott Paper at trial, and the general verdict, we cannot determine from the record that the defense verdict was not based on a defense that was personal to Scott Paper.
Brown presented evidence from which the jury could have determined that Brown was subjected to sexual harassment or discrimination by her co- workers, or by the individual managers, or by both groups, but there is also evidence from which the jury could have determined that Scott Paper, as the overall employer, took prompt and immediate remedial action of a nature reasonably calculated to end the harassment, once complaints were made to higher management.
In her complaint, Brown alleged that the six managers and other male employees of Scott Paper subjected her to a work environment that was hostile to her gender. She alleged that the six managers and other male employees engaged in objectionable conduct, including continuously subjecting her to unwanted sexual overtures, lewd sexual discussions, jokes and comments, and unwanted touching of a sexual nature. Brown alleged that Scott Paper was or should have been aware of the sexual harassment and failed to take effective action against male managers and other male employees at the plant who created a hostile work environment for Brown on account of her gender. She alleged that on at least one occasion Scott Paper took adverse employment actions against her because she rebuffed the sexual advances of a superior (not one of the n
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