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Southwest Gas v. Vargas8/24/1995
sexual harassment present significant problems to employers, not only in terms of their contractual relationship with their employees, but in terms of federal law under Title VII of the Civil Rights Act. See 42 U.S.C. SS 2000e-2000e-17. Allowing a jury to second guess an employer's good-faith determination that sexual harassment has occurred would thrust employers into an extremely difficult, Catch-22 predicament. In one notable case decided by the Tenth Circuit Court of Appeals, an employer discharged an employee known to be guilty of sexual harassment six months after the complainant's first reports of misconduct. The court held that the employer had failed to promptly remedy the hostile environment, and was thus liable to the employee under Title VII. Baker v. Weyerhaeuser Co., 903 F.2d 1342, 1345 (10th Cir. 1990). Baker and similar cases compel employers to take accusations of sexual harassment very seriously. Public policy therefore requires that employers be given broad discretion to determine what types of speech and conduct fall within the prohibited category of sexual harassment when determining whether to terminate an employee, and such determinations are entitled to deference when the discharged employee seeks to recover for breach of an implied contract. Williams v. Maremont Corp., 875 F.2d 1476, 1485 (10th Cir. 1989).
6 A "hostile environment" Title VII claim generally requires evidence of a pattern of offensive conduct; single or isolated incidents will not suffice. See Moylan v. Maries County, 792 F.2d 746, 749-50 (8th Cir. 1986). An employer privy to the nuances of Title VII would certainly be sensitive to the precise facts of each case of sexual harassment in determining appropriate remedies. In addition, Vargas's counsel stated during oral argument that the five prior cases of sexual harassment occurred between 1982 and 1985. There were substantial changes in the degree of seriousness with which society and the law viewed sexual harassment in the workplace subsequent to the time of the earlier cases at Southwest. This alone would justify a more severe response to the sexual harassment involved in the instant case. See supra note 4.
7 We again note the extreme tension placed on an employer under the circumstances of this case. If Southwest had transferred Vargas to another department, or given him a series of warnings prior to termination, and the "atmosphere of hostility" thus prolonged, the $365,236.00 judgment entered against Southwest in favor of Vargas may have indeed been awarded to one or more other Southwest employees who were unnecessarily exposed to an extended sexual harassment by Vargas. If such conditions were countenanced under any principle of law, employers would virtually be driven to take all necessary steps to see that all employees were clearly placed in an at-will category.
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