RALPH M. FREEMAN, District Judge.
This matter is before the Court on the motion of defendants James T. Barnes Company, Glenn D. Harris and Robert C. Zulcosky for summary judgment. For purposes of this motion, defendants stipulate to the following facts:
Plaintiff Maxine Munford, a black female, was hired by defendant Glenn D. Harris, who is white, as assistant collections manager for defendant James T. Barnes Co. on January 28, 1976. The following day, shortly after Ms. Munford reported for work, Harris asked her to accompany him to the 25th floor to get office supplies. While they were on this errand, Harris made overt sexual suggestions to Ms. Munford which she rebuffed. Harris indicated that Ms. Munford's job might be dependent on whether or not she acceded to his demands.
Over the next several days Harris made repeated sexual suggestions and innuendoes to Ms. Munford, both verbally and through acts of petty harassment such as leaving cartoons on her desk. She repeatedly indicated that she was not interested in a sexual liaison with him. When she finally told him that she was going to report his offensive behavior to Mr. Zulcosky, Harris's supervisor, Harris replied that she would only succeed in getting herself fired since Zulcosky was his friend.
On February 12, 1976, Harris told Ms. Munford that she was to accompany him to Grand Rapids on a business trip and that she was to stay overnight in the same motel room and have sexual relations with him. Ms. Munford replied that she would accompany him on the business trip but would not stay in his motel room nor have sexual intercourse with him. When Harris repeated his demands on the following day, Ms. Munford made the same reply. Harris then told her he was going to discharge her, and in fact did so.
Immediately following her dismissal, Ms. Munford went to Zulcosky, related the entire sequence of events and protested her discharge. Zulcosky told her that he would have to back up Harris and that the termination would stand. In further protest, Ms. Munford met with Harris, Zulcosky, James T. Barnes, and attorneys representing the various parties on a subsequent occasion, but the company declined to make any offer of settlement of Ms. Munford's grievances.
Plaintiff contends that her discharge from James T. Barnes Co. because she refused to have sexual relations with her supervisor was employment discrimination unlawful under Title VII of the Civil Rights Act of 1964 and the 14th Amendment of the U. S. Constitution. 42 U.S.C. § 2000e-2 (Title VII § 703) reads in pertinent part:
Five cases have squarely considered the question of whether personnel action taken on the basis of a woman's refusal to accede to the sexual demands of a supervisor is employment discrimination cognizable under Title VII. In Corne v. Bausch and Lomb, Inc., 390 F.Supp. 161 (D.Ariz.1975), two women sued their supervisor, Leon Price, and the company they worked for, Bausch and Lomb, Inc., for sexual harassment which they found so onerous that they were forced to resign from their jobs. The court dismissed the complaint against Bausch and Lomb, finding that there was no company policy which condoned the activity of the supervisor and further holding that the sexual harassment described by the plaintiffs was not the sort of activity contemplated by the proscriptions of Title VII. The court observed:
There are two possible inferences to be drawn from the Corne case: First, there must be some definable employment practice attributable to the employer to hold him accountable under Title VII and secondly, sexual harassment of female employees by male supervisors is not employment discrimination within the scope of the Act. The Corne decision does not make clear, however, whether or not sexual harassment that is attributable to an employer, as opposed to merely a supervisory employee, is cognizable as sex discrimination under Title VII.
In Williams v. Saxbe, 413 F.Supp. 654 (D.D.C.1976), the court reached a result different from that in Corne. In Williams, the plaintiff contended that she had been discharged from her job with the Department of Justice because she had declined the sexual advances of her supervisor. The court clearly held that retaliatory actions of a male supervisor, taken because a female employee declines his sexual advances, constitutes sex discrimination within the definitional parameters of Title VII. The court reasoned that since the conduct of the supervisor created an artificial barrier to employment
The court relied heavily on the precedents of Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971) and Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir. 1971). In Martin Marietta, the Supreme Court, while vacating the decision of the Fifth Circuit because there had been no finding on the issue of bona fide occupational qualification, agreed that a policy which allowed the hiring of men who had pre-school children for certain positions but which did not allow the hiring of women with pre-school children for the same position was sex discrimination in violation of Title VII. Similarly, the Seventh Circuit in Sprogis found employment discrimination in a rule which required female stewardesses to be unmarried but which did not apply to male employees. The court in Williams reasoned that the sexual harassment case was similar to the situations in Martin Marietta and Sprogis because it involved a rule, regulation or policy which created an artificial barrier to employment which was applied to one gender but not the other, and thus constituted sex discrimination in violation of Title VII. This holding is in direct conflict with that in Corne, supra, where the court accepted by implication the theory that sex discrimination under Title VII must involve some type of sexual stereotyping or a policy applicable to only one of the genders because of the characteristics that are peculiar to one of the genders.
Williams is closer to Corne, however, in recognizing that a rule, regulation or policy must be specifically attributable to the employer to establish liability under Title VII. But whereas Corne held that the employer was not liable as a matter of law for the abusive behavior of supervisory employees, Williams held that the employer's liability was a question of fact to be decided at trial. The court stated:
In Miller v. Bank of America, 418 F.Supp. 233 (N.D.Cal.1976) the court referred to both Corne and Williams in dismissing plaintiff's cause of action against the defendant bank. The court relied on the undisputed fact that the bank had an affirmative policy of discouraging sexual advances and a well-established grievance procedure of which plaintiff had not availed herself. Under both Corne and Williams, therefore, the bank could not be held liable under Title VII, since there was no policy attributable to the bank which would constitute sex discrimination. The court noted:
The court went on to indicate in dicta that it did not believe that sexual harassment was the type of activity sought to be prohibited by Title VII, and that federal courts would be well-advised to avoid recognizing a cause of action in such a sensitive area. The court stated:
Thus Miller stands in substantial agreement with Corne and appears to reject the holding in Williams that any practice which places an impediment to the employment of one gender and not the other may be cognizable as sex discrimination under Title VII.
In Tomkins v. Public Service Electric & Gas Co., 422 F.Supp. 553 (D.N.J.1976), the court explicitly rejected the Williams theory of sex discrimination and held that Title VII was not intended as a panacea for sexual misconduct on the part of supervisory personnel. The court discussed at some length the theory advanced by plaintiff and the background of Title VII:
But while the language quoted above clearly aligns Tomkins with Corne and Miller, the court went on to suggest that an employer may open itself to liability if it chooses to fire a female employee who registers a complaint of sexual abuse rather than investigate. The court reasoned that such action may be sex discrimination because it indicates a preference for the allegedly offending male employee over the complaining female by accepting his word against hers.
Finally, in the only Court of Appeals decision reported on this issue, the D.C. Circuit held in Barnes v. Costle, U.S.App.D.C., 561 F.2d 983 (1977) that a female employee whose job with a federal agency was abolished after she refused to submit to her male supervisor's sexual advances has a cause of action for sex discrimination under Title VII. First, the court substantially adopted the theory advanced in Williams, supra, that sexual harassment is an impediment to employment which constitutes sex discrimination because it applies to one gender and not the other. The court stated:
The court went considerably beyond the district court decisions, however, in holding that an employer is generally chargeable with Title VII violations occasioned by discriminatory practices of supervisory personnel. While acknowledging that an employer may be exonerated if the supervisor has contravened employer policy without the employer's knowledge and the consequences are rectified when discovered, the court appeared to reject the idea that the employer must be found to have a definable policy of discrimination to be liable under Title VII. Judge MacKinnon, who wrote a separate concurring opinion, indicated that he would limit liability of a company employer to cases in which
Reading the case law as a whole, one must infer that two distinct but interrelated questions comprise the issue of whether sexual harassment constitutes sex discrimination under Title VII. First, the court must decide whether sexual harassment is the type of activity contemplated by the Act's proscription, and secondly, the court must consider what constitutes an employment practice for which an employer may be liable.
This Court agrees with the reasoning of Barnes and Williams that sex discrimination is not limited to sexual stereotyping and that the Act prohibits any impediment to employment which affects one gender but not the other. The cases of Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971) and Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir. 1971), discussed above, both support such an interpretation. The legislative history as outlined in Barnes supports this position, and the EEOC has issued regulations under the Act which indicate that "so long as sex is a factor in the application of [an employment policy or practice], such
The Court must still decide, however, what constitutes an employment practice of sexual harassment for which an employer may be held liable. As a preliminary matter, the Court observes that defendants Harris and Zulcosky are "employers" within the meaning of the Act, which defines employers as:
Since Harris and Zulcosky admittedly had responsibility for making personnel decisions for James T. Barnes Co., they would be considered agents of the company at least for that purpose, and therefore within the statutory definition of employer. The company itself was Ms. Munford's actual employer, and clearly within the statutory definition.
Neither Zulcosky nor the company, however, is alleged to have engaged in actual incidents of sexual harassment. Rather, plaintiff's theory is that they are liable under the Act because they ratified without investigation the conduct of defendant Harris. The Court agrees that an employer may be liable for the discriminatory acts of its agents or supervisory personnel if it fails to investigate complaints of such discrimination. The failure to investigate gives tacit support to the discrimination because the absence of sanctions encourages abusive behavior. While the Court declines to follow the holding in Barnes that an employer is automatically and vicariously liable for all discriminatory acts of its agents or supervisors, the Court does hold that an employer has an affirmative duty to investigate complaints of sexual harassment and deal appropriately with the offending personnel. The plaintiff in this case has alleged that Zulcosky and James T. Barnes Co. ratified Harris's acts of discrimination by supporting her dismissal without investigating her complaint. The Court is of course not now in a position to say whether the actions of any of the defendants in fact constituted sex discrimination, since plaintiff will be required to prove her allegations at trial. But for purposes of this motion, where defendants have accepted plaintiff's allegations as true, plaintiff has stated a good cause of action under Title VII against all three defendants.
Some final comments are in order concerning two other of plaintiff's theories. First, although plaintiff claims discrimination in violation of the 14th Amendment, no state action is alleged or suggested in any pleading and in fact plaintiff's cause of action is only under Title VII. Secondly, while plaintiff claims that she was discriminated against not only because of her sex but also because of her race, nothing presented to this Court even faintly suggests racial overtones to this incident. Plaintiff's attorney indicated at oral argument that statistical sociological studies would show that plaintiff was a more likely victim of sexual harassment because she was black. The Court recognizes that statistics may form a basis for a claim of discrimination, but courts have limited their admissibility in individual actions (as opposed to class actions) to cases where the statistics are probative of the intent or motive of the specific employer. See, e. g., Harper v. Trans World Airlines, 525 F.2d 409 (8th Cir. 1975). The statistical basis for plaintiff's claim of race discrimination in this case appears so far removed from the behavior complained of that the Court feels obligated to dismiss that legal theory. Ms. Munford has never suggested that her encounters with Harris were more than a personal incident of sexual harassment. No
For the reasons stated herein defendant's motion for summary judgment is denied on the issue of sex discrimination and granted on the issue of race discrimination.
An appropriate order shall be submitted.