Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.
J. SKELLY WRIGHT, Chief Judge:
In Barnes v. Costle, 561 F.2d 983 (D.C.Cir.1977), we held that an employer who abolished a female employee's job to retaliate against the employee's resistance of his sexual advances violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1976 & Supp. III 1979). The appellant in this case asserts some claims encompassed by the Barnes decision, arguing that her rejection of unsolicited and offensive sexual advances from several supervisors in her agency caused those supervisors unjustifiably to delay and block promotions to which she was entitled. Equally important, however, appellant asks us to extend Barnes by holding that an employer violates Title VII merely by subjecting female employees to sexual harassment, even if the employee's resistance to that harassment does not cause the employer
The District Court in this case made an express finding of fact that in appellant's agency "the making of improper sexual advances to female employees [was] standard operating procedure, a fact of life, a normal condition of employment," Finding of Fact No. 38, Appellant's Appendix (App.) 15, and that the director of the agency, to whom she complained of the harassment, failed to investigate her complaints or take them seriously, id. No. 44, App. 16. Nevertheless, the District Court refused to grant appellant any declaratory or injunctive relief, concluding that sexual harassment does not in itself represent discrimination "with respect to * * * terms, conditions, or privileges of employment" within the meaning of Title VII, 42 U.S.C. § 2000e-2(a)(1) (1976). Further, the court denied appellant's request for back pay to compensate for the allegedly improper delay in her promotion to GS-9, and for elevation to GS-11 and back pay for the delay in that promotion, holding that the employer had independent, legitimate reasons for delaying and denying the promotions.
Because we believe the District Court wrongly construed Title VII on the claim for declaratory and injunctive relief and failed to apply the proper burden of proof analysis to the promotion claims, we reverse.
Appellant Sandra Bundy is now, and was at the time she filed her lawsuit, a Vocational Rehabilitation Specialist, level GS-9, with the District of Columbia Department of Corrections (the agency). Bundy began with the agency as a GS-4 Personnel Clerk in 1970, was promoted to GS-5 that same year, and became a GS-6 Staffing Technician in the Personnel Department in 1973. After training as a technician in employment staffing, she became a GS-7 Employment Development Specialist (the predecessor classification to Vocational Rehabilitation Specialist) in 1974, and achieved her current GS-9 level in 1976, one year after she filed her formal complaint of sexual harassment with the agency. In recent years Bundy's chief task has been to find jobs for former criminal offenders.
The District Court's finding that sexual intimidation was a "normal condition of employment" in Bundy's agency finds ample support in the District Court's own chronology of Bundy's experiences there. Those experiences began in 1972 when Bundy, still a GS-5, received and rejected sexual propositions from Delbert Jackson, then a fellow employee at the agency but now its Director and the named defendant in this lawsuit in his official capacity. Findings of Fact Nos. 28-29, App. 11-12. It was two years later, however, that the sexual intimidation Bundy suffered began to intertwine directly with her employment, when she received propositions from two of her supervisors, Arthur Burton and James Gainey.
Burton became Bundy's supervisor when Bundy became an Employment Development Specialist in 1974. Shortly thereafter Gainey became her first-line supervisor and Burton her second-line supervisor, although Burton retained control of Bundy's employment
We add that, although the District Court made no explicit findings as to harassment of other female employees, its finding that harassment was "standard operating procedure" finds ample support in record evidence that Bundy was not the only woman subjected to sexual intimidation by male supervisors.
In denying Bundy any relief, the District Court found that Bundy's supervisors did not take the "game" of sexually propositioning female employees "seriously," and that Bundy's rejection of their advances did not evoke in them any motive to take any action against her. Id. No. 38, App. 15. The record, however, contains nothing to support this view, and indeed some evidence directly belies it. For example, after Bundy complained to Swain, Burton began to derogate her for alleged malingering and poor work performance, though she had not previously received any such criticism. App. 30. Burton also arranged a meeting with Bundy and Gainey to discuss Bundy's alleged abuse of leave, though he did not pursue his charges at this meeting. App. 94-95.
Beyond these actions, Bundy's supervisors at least created the impression that they were impeding her promotion because she had offended them, and they certainly did nothing to help her pursue her harassment claims through established channels. Bundy became eligible for promotion to GS-9 in January 1975. App. 178. When she contacted Gainey to inquire about a promotion he referred her to Burton, who then referred her back to Gainey, who then told her that because of a promotion freeze he could not recommend her for a promotion. App. 41-43. One month later, however, Bundy learned that the personnel office had indeed recommended other employees for promotion despite the freeze. App. 44.
On April 11, 1975 Bundy met with Jackson and showed him the draft of a letter summarizing her complaint. Jackson then arranged an April 14 meeting with Burgin, Burton, and Bundy, Finding of Fact No. 39, App. 14, but Gilmore, who had become Chief of Manpower Management at the agency, and Charles Rogers, Assistant Director of Operations, also attended the meeting. Bundy, purportedly embarrassed at the unexpected presence of the latter two men, did not take the opportunity of discussing her sexual harassment claims at this meeting, nor did Jackson or Gilmore raise the issue. Instead, the meeting focused on Bundy's possible promotion and her alleged work deficiencies. Id. No. 40, App. 15-16. On April 23 Gainey and Burton completed a memorandum offering Bundy's inadequate work performance as the reason for denying her a promotion to GS-9. Plaintiff's Exh. 2, Appellant's Supplemental Appendix (SA) 217. Bundy responded to this memorandum, arguing that her supervisors had never presented her with any written criticism of her performance until she raised the harassment issue. See App. 145-148.
Bundy proceeded to pursue her complaint beyond her immediate supervisors. She registered an informal complaint with EEO Officer Philip Matthews, App. 64-65,
Bundy filed her complaint in the District Court on August 3, 1977.
II. CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF
The District Court appeared to find that even Bundy took a casual attitude toward the pattern of unsolicited sexual advances in the agency, Finding of Fact No. 47, App. 17, thereby implying that these advances by
The key provision of Title VII states:
42 U.S.C. § 2000e-2(a)(1) (1976). The specific provision of Title VII applying to employment with the District of Columbia, as well as to a federal agency as in Barnes v. Costle, supra, states:
Id. § 2000e-16(a). Despite the difference in language between these two sections, we have held that Title VII places the same restrictions on federal and District of Columbia agencies as it does on private employers, Barnes v. Costle, supra, 561 F.2d at 988, and so we may construe the latter provision in terms of the former. We infer that the District Court in this case did the same, and that it refused Bundy declaratory and injunctive relief because it believed that sexual harassment not leading to loss or denial of tangible employment benefits for the harassed employee fell outside the scope of discrimination with respect to "terms, conditions, or privileges of employment."
Because Paulette Barnes had had her job terminated after she refused her supervisor's sexual importunings, we were not required in Barnes to construe the phrase "terms, conditions, or privileges of employment." Instead, our task of statutory construction in Barnes was to determine whether the disparate treatment Barnes suffered was "based on * * * sex." Id. at 989. We heard arguments there that whatever harm Barnes suffered was not sex discrimination, since Barnes' supervisor terminated her job because she had refused sexual advances, not because she was a woman. We rejected those arguments as disingenuous in the extreme. The supervisor in that case made demands of Barnes that he would not have made of male employees. Id. "But for her womanhood * * [Barnes'] participation in sexual activity would never have been solicited. To say, then, that she was victimized in her employment simply because she declined the invitation is to ignore the asserted fact that she was invited only because she was a woman subordinate to the inviter in the hierarchy of agency personnel." Id. at 990 (emphasis added; footnotes omitted).
We thus made clear in Barnes that sex discrimination within the meaning of Title VII is not limited to disparate treatment founded solely or categorically on gender. Rather, discrimination is sex discrimination whenever sex is for no legitimate reason a substantial factor in the discrimination. Id. at 990 & n.50, citing Phillips
We thus have no difficulty inferring that Bundy suffered discrimination on the basis of sex. Moreover, applying Barnes, we have no difficulty ascribing the harassment — the "standard operating procedure" — to Bundy's employer, the agency. Although Delbert Jackson himself appears not to have used his position as Director to harass Bundy, an employer is liable for discriminatory acts committed by supervisory personnel, Barnes v. Costle, supra, 561 F.2d at 993, and there is obviously no dispute that the men who harassed Bundy were her supervisors. Barnes did suggest that the employer might be relieved of liability if the supervisor committing the harassment did so in contravention of the employer's policy and without the employer's knowledge, and if the employer moved promptly and effectively to rectify the offense. Id.; see Croker v. Boeing Co. (Vertol Div.), 437 F.Supp. 1138, 1194 (E.D. Pa.1977). Here, however, Delbert Jackson and other officials in the agency who had some control over employment and promotion decisions had full notice of harassment committed by agency supervisors and did virtually nothing to stop or even investigate the practice.
We thus readily conclude that Bundy's employer discriminated against her on the basis of sex. What remains is the novel question whether the sexual harassment of the sort Bundy suffered amounted by itself to sex discrimination with respect to the "terms, conditions, or privileges of employment." Though no court has as yet so held, we believe that an affirmative answer follows ineluctably from numerous cases finding Title VII violations where an employer created or condoned a substantially discriminatory work environment, regardless of whether the complaining employees lost
Bundy's claim on this score is essentially that "conditions of employment" include the psychological and emotional work environment — that the sexually stereotyped insults and demeaning propositions to which she was indisputably subjected and which caused her anxiety and debilitation, App. 40, illegally poisoned that environment. This claim invokes the Title VII principle enunciated by Judge Goldberg in Rogers v. Equal Employment Opportunity Com'n, 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972). The plaintiff in Rogers, a Hispanic, did not claim that her employer, a firm of opticians, had deprived her of any tangible job benefit. Rather, she claimed that by giving discriminatory service to its Hispanic clients the firm created a discriminatory and offensive work environment for its Hispanic employees. Granting that the express language of Title VII did not mention this situation, Judge Goldberg stated:
454 F.2d at 238. The Fifth Circuit then concluded that the employer had indeed violated Title VII, Judge Goldberg explaining that "terms, conditions, or privileges of employment"
Id.; accord, Carroll v. Talman Federal Savings & Loan Ass'n, 604 F.2d 1028, 1032-1033 & n.13 (7th Cir. 1979), petition for cert. pending (forcing female bank employees to wear uniforms while allowing males to wear own suits violates Title VII by perpetuating demeaning sexual stereotypes; "terms and conditions of employment" mean more than tangible compensation and benefits); Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 87 (8th Cir. 1977) (though employee could only prove isolated incidents, a pattern of offensive ethnic slurs would violate his Title VII rights); Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506, 514-515 (8th Cir.), cert. denied, 434 U.S. 819, 98 S.Ct. 60, 54 L.Ed.2d 76 (1977) (segregated employee eating clubs condoned — though not organized or regulated — by employer violate Title VII by creating discriminatory work environment); Gray v. Greyhound Lines, East, 178 U.S.App.D.C. 91, 545 F.2d 169, 176 (D.C. Cir. 1976) (pattern of racial slurs violates Title VII rights to nondiscriminatory environment); United States v. City of Buffalo, 457 F.Supp. 612, 631-635 (W.D. N.Y. 1978) (black employees entitled to work environment free of racial abuse and insult); Compston v. Borden, Inc., 424 F.Supp. 157 (S.D. Ohio 1976) (demeaning religious slurs by supervisor violate Title VII); Steadman v. Hundley, 421 F.Supp. 53, 57 (N.D. Ill. 1976) (racial slurs may lead to Title VII violation); cf. Harrington v. Vandalia-Butler Board of Educ., 585 F.2d 192,
The relevance of these "discriminatory environment" cases to sexual harassment is beyond serious dispute. Racial or ethnic discrimination against a company's minority clients may reflect no intent to discriminate directly against the company's minority employees, but in poisoning the atmosphere of employment it violates Title VII. Sexual stereotyping through discriminatory dress requirements may be benign in intent, and may offend women only in a general, atmospheric manner, yet it violates Title VII. Racial slurs, though intentional and directed at individuals, may still be just verbal insults, yet they too may create Title VII liability. How then can sexual harassment, which injects the most demeaning sexual stereotypes into the general work environment and which always represents an intentional assault on an individual's innermost privacy, not be illegal?
Moreover, an important principle articulated in Rogers v. Equal Employment Opportunity Com'n, supra, suggests the special importance of allowing women to sue to prevent sexual harassment without having to prove that they resisted the harassment and that their resistance caused them to lose tangible job benefits. Judge Goldberg noted that even indirect discrimination is illegal because it
454 F.2d at 239. Thus, unless we extend the Barnes holding, an employer could sexually harass a female employee with impunity by carefully stopping short of firing the employee or taking any other tangible actions against her in response to her resistance, thereby creating the impression — the one received by the District Court in this case — that the employer did not take the ritual of harassment and resistance "seriously."
Indeed, so long as women remain inferiors in the employment hierarchy, they may have little recourse against harassment beyond the legal recourse Bundy seeks in this case. The law may allow a woman to prove that her resistance to the harassment cost her her job or some economic benefit, but this will do her no good if the employer never takes such tangible actions against her.
The employer can thus implicitly and effectively make the employee's endurance of sexual intimidation a "condition" of her employment. The woman then faces a "cruel trilemma." She can endure the harassment. She can attempt to oppose it, with little hope of success, either legal or practical, but with every prospect of making the job even less tolerable for her. Or she can leave her job, with little hope of legal relief
Bundy proved that she was the victim of a practice of sexual harassment and a discriminatory work environment permitted by her employer. Her rights under Title VII were therefore violated. We thus reverse the District Court's holding on this issue and remand it to that court so it can fashion appropriate injunctive relief.
Guidelines, supra, 45 Fed.Reg. at 74677 (to be codified at 29 C.F.R. § 1604.11(a)). The Guidelines go on to reaffirm that an employer is responsible for discriminatory acts of its agents and supervisory employees with respect to sexual harassment just as with other forms of discrimination, regardless of whether the employer authorized or knew or even should have known of the acts, id. (to be codified at 29 C.F.R. § 1604.11(d)), and also remains responsible for sexual harassment committed by nonsupervisory employees if the employer authorized, knew of, or should have known of such harassment, id. (to be codified at 29 C.F.R. § 1604.11(d)). The general goal of these Guidelines is preventive. An employer may negate liability by taking "immediate and appropriate corrective action" when it learns of any illegal harassment, id., but the employer should fashion rules within its firm or agency to ensure that such corrective action never becomes necessary, id. (to be codified at 29 C.F.R. § 1604.11(f)).
Applying these Guidelines to the present case, we believe that the Director of the agency should be ordered to raise affirmatively the subject of sexual harassment with all his employees and inform all employees that sexual harassment violates Title VII of the Civil Rights Act of 1964, the Guidelines of the EEOC, the express orders of the Mayor of the District of Columbia,
Perhaps the most important part of the preventive remedy will be a prompt and effective procedure for hearing, adjudicating, and remedying complaints of sexual harassment within the agency. Fortunately, the District Court need not establish an entire new procedural mechanism for harassment complaints. Under regulations promulgated by the Equal Employment Opportunity Commission, 29 C.F.R. §§ 1613.201-1613.283 (1979), the Department of Corrections, like all other federal and District of Columbia agencies, is required to establish procedures for adjudication of complaints of denial of equal employment opportunity,
Since we have held that sexual harassment, even if it does not result in loss of tangible job benefits, is illegal sex discrimination, the District Court may simply order the Director of the agency to ensure that complaints of sexual harassment receive thorough and effective treatment within the formal process the agency has already established to comply with the Civil Service Commission regulations. Finally, we believe the District Court should retain jurisdiction of the case so that it may review the Director's plans for complying with the injunction.
III. CLAIMS FOR BACK PAY AND PROMOTION
Beyond claiming that the sexual harassment she suffered was illegal in itself, Bundy claims that her supervisors illegally retaliated against her refusal of their sexual propositions by delaying her promotion to GS-9 level, and that they continue to retaliate by denying her a promotion to GS-11. Bundy thus requests back pay for the delay in promotion to both levels, and an order requiring her immediate promotion to GS-11. The District Court held against Bundy on these claims, essentially finding that the supervisors were not offended by Bundy's refusal of their advances, and hence had no motive to retaliate against her, and that Bundy's flawed qualifications and work performance gave them legitimate reasons for delaying and denying the promotions. Bundy now argues that the District Court's factual findings were clearly erroneous, Fed.R.Civ.P. 52(a), and notes that in a discrimination
Bundy became eligible for promotion to GS-9 in January 1975 after 12 months as a GS-7. She was not promoted until July 1976.
The trial court found that Bundy's work was in fact deficient, and that her qualifications were inferior to those of Hill and Goff. It found that Bundy had taken excessive sick leave, failed to file required reports, made insufficient field contacts, and neglected to report her duty assignments, Findings of Fact Nos. 16-19, App. 10, and that her supervisors had properly informed her of these deficiencies, id. No. 20, App. 10. It also found that Hill and Goff, unlike Bundy, had had considerable experience working with ex-offenders or disadvantaged youths before they joined the agency, and that Goff, unlike Bundy, possessed a college degree. The District of Columbia now supports the District Court decision by noting that Bundy's consistent "satisfactory" work ratings are not in themselves a sufficient basis for promotion, Defendant's Exh. No. 17, SA 294, and that had Bundy been promoted in January 1975 she would have achieved the promotion faster than any employee in her unit, male or female, and much earlier than several male employees, Defendant's Exh. No. 14, SA 288. Bundy responds that there is no basis for the District's challenges to her work performance, that — in the testimony of her colleague Ann Blanchard — all employees in the unit had difficulty with filing and other procedures, App. 107-114, and that her allegedly excessive sick leave was in fact due to emotional stress she suffered as a result of sexual harassment, App. 39-40.
As for her desired promotion to GS-11, Bundy notes that such a promotion was granted in 1977 to another employee, Curtis Davis, whose responsibilities and performance, she argues, were similar to hers. In finding against her on this issue, the District Court found that because Bundy, unlike Davis, worked mostly with so-called "regular procedure" cases rather than "special procedure" cases, as defined by the Civil Service Commission, she was not eligible for GS-11. Findings of Fact Nos. 10-11, App. 9; Conclusion of Law No. 4, App. 17.
The relevant distinction between Bundy's and Davis' work is apparently that Bundy worked primarily with clients over 26 years old and Davis solely with clients under 26. App. 73-75. Bundy insists that the District Court misconstrued the Civil Service classifications in concluding that the age of the
In a case of such factual dispute, we of course owe great deference to the trial court's findings. Indeed, we must affirm the trial court's conclusion on the question of discrimination if the so-called "subsidiary facts" are not clearly erroneous, if the inferences drawn from them are reasonable, and if the findings and inferences reasonably support the "ultimate" factual finding on discrimination. Kinsey v. First Regional Securities, Inc., supra, 557 F.2d at 835-836. Nevertheless, were we to make a final disposition of Bundy's back pay and promotion claims, even under this highly deferential standard we might be inclined to overrule the District Court. Most important, we would readily reject as clearly erroneous the District Court's findings that the supervisors in Bundy's agency never took the ritual of harassment seriously and that they therefore had no motive for retaliating against Bundy. Findings of Fact Nos. 38, 44, App. 15, 16. Moreover, we would at least be inclined to question the District Court's findings on Bundy's allegedly poor work performance, id. Nos. 16-20, App. 10, since the only important evidence of flaws in her work was the self-serving testimony of supervisors who had themselves been her harassers.
However, we cannot make a final disposition of these claims, because the District Court, whether right or wrong in its factual findings, failed to allocate properly the burden of proof according to Title VII principles. The District Court's findings of fact and conclusions of law in no way indicate that the court properly defined the requirements of the plaintiff's prima facie case, or the burden the employer bears in rebutting a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 805, 93 S.Ct. 1817, 1824, 1825, 36 L.Ed.2d 668 (1973); Hackley v. Roudebush, 520 F.2d 108, 157-158 (D.C. Cir. 1975). We therefore must remand the case to the District Court to enable it to conduct further evidentiary proceedings in accordance with the proper allocation of burden of proof. However, adjusting the general burden of proof principles of McDonnell Douglas Corp. v. Green, supra, to unusual factual situations is a matter of some difficulty, and this sexual harassment claim is indeed exceptionally unusual among Title VII cases. We therefore shall attempt to guide the District Court in this matter.
Recognizing the difficulty a plaintiff faces in proving the motives behind an employer's actions, McDonnell established the general principle that in an employment discrimination case under Title VII the employee must first make out a prima facie case.
The literal McDonnell formula, of course, is designed for a claim of discriminatory refusal to hire due to alleged racial prejudice. It does not precisely apply to a claim, like Bundy's, of discriminatory refusal to promote. Even more important, the McDonnell formula presumes the standard situation where the alleged discrimination is due to the bare fact of the claimant's membership in a disadvantaged group. It therefore also fails to fit with precision the very unusual, perhaps unique, situation of sexual harassment, where the alleged basis of discrimination is not the employee's gender per se, but her refusal to submit to sexual advances which she suffered in large part because of her gender. McDonnell itself, however, recognizes very realistically that the courts must adjust the definition of a prima facie case and the allocation of burden of proof to the differing situations that may arise in Title VII cases, 411 U.S. at 802 n.14, 93 S.Ct. at 1824 n.14, and with that recognition in mind we proceed to consider the proper proof standards for this case.
Adjusting the McDonnell formula to cases of discriminatory refusal to promote is relatively simple. Thus to make out a prima facie case the plaintiff must show that she belongs to a protected group, that she was qualified for and applied for a promotion, that she was considered for and denied the promotion, and that other employees of similar qualifications who were not members of the protected group were indeed promoted at the time the plaintiff's request for promotion was denied. Kunda v. Muhlenberg College, 463 F.Supp. 294, 307 (E.D.Pa. 1978). Qualification for promotion, of course, may not be a strictly precise concept, and will depend on the rules and customs of a particular employer. In the present case, for example, a Vocational Rehabilitation Specialist's technical eligibility for promotion to a GS-9 level never automatically means promotion, nor does mere "satisfactory" performance in the complainant's current job ever guarantee promotion. But proof of these factors certainly helps establish a prima facie case. On the other hand, there can be no absolute precise and uniform time period before and after the denial of the complainant's promotion during which plaintiffs must show that similarly qualified nondisadvantaged employees were promoted. But a court can certainly determine a reasonable period on the facts of a particular case.
This minor adjustment in the McDonnell formula for promotion cases could, of course, end our analysis of the issue of Bundy's claims for back pay and
We have already essentially taken this view in an analogous case. In Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976), a black employee of the Department of Health, Education and Welfare had sought promotion. He alleged, and HEW conceded, that HEW officials had discriminated against him on account of his race by impeding his request through administrative delays and unfairly low ratings of his performance. Id. at 1084. Nevertheless, HEW argued that Day would not have gotten the promotion even if he had not been the victim of discrimination; apparently HEW believed the discrimination was a gratuitous act by prejudiced officials and that Day was in any event not qualified for the promotion. In remanding the case to the District Court for further evidentiary proceedings under the proper legal standard of proof, we held that, since the employer had already been proved a discriminator, the plaintiff's prima facie case with respect to the denial of promotion had in effect already been made out, and that the burden should immediately shift to the employer to prove that Day's qualifications were such that he would not have been promoted even if he had not been the victim of discrimination. Id. at 1085. Moreover, in this special circumstance we held that the burden of persuasion, not just the burden of going forward with the evidence, shifted to the employer. And we held that the employer must meet his burden by clear and convincing evidence, rather than simply by a preponderance of the evidence. Id. See Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 444-445 (5th Cir.), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974) (once employer is proved to have discriminated against plaintiff class, he bears burden of presenting clear and convincing evidence on issue of discrimination against individual plaintiffs). We stressed in Day that since the employer's own proved discriminatory actions were largely responsible for the plaintiff's typical dilemma of having to prove the motive underlying the employer's past action, "any resulting uncertainty [should] be resolved against the party whose action gave rise to the problem." 530 F.2d at 1086 (footnote omitted). We thereby recognized that where a Title VII defendant is proved a discriminator as a matter independent of the plaintiff's claim of discriminatory denial of a tangible job benefit, the court should ease the plaintiff's burden on that latter claim.
The most important difference between this formula and the McDonnell formula is that we are not requiring the plaintiff to show as part of her prima facie case that other employees who were no better qualified, but who were not similarly disadvantaged, were promoted at the time she was denied a promotion. We relieve the plaintiff of the need to prove such facts because, as we have explained, we think her burden should be eased where she can prove not only that she is a member of a disadvantaged group, but also that she has personally suffered illegal discrimination through the harassment itself. We simply require the plaintiff to show that according to the employer's formal rules she was eligible for promotion and that, within the context of the employer's actual practical pattern of promotion, she had a reasonable expectation of the promotion she sought. In rebutting the prima facie case — if the plaintiff makes it out — the employer would then have to show by clear and convincing evidence that, despite the employee's technical eligibility for promotion, in practice it set qualification criteria for promotion more stringent than the employee could meet. The employer could support his rebuttal case by showing that any other employees who were promoted at approximately the time the plaintiff was denied promotion and who were not themselves victims of the pattern of sexual harassment in fact met these more stringent criteria. See note 18 supra.
Applying these principles, we remand the case to the District Court for further proceedings consistent with this opinion.
Ann Blanchard worked for the agency from 1971 to 1973, supervised by James Gainey and Arthur Burton. Burton made sexual advances toward her and also apparently intimidated her by stating that another employee whom he would not identify had told Burton that Blanchard had been conducting a sexual relationship with one of her agency clients. App. 105-106.
We note in this context that the District Court's finding that Jackson, among others, did not take the harassment ritual "seriously" is a remarkable non sequitur.
Finding of Fact No. 44, App. 16. To state the all too obvious, Jackson may have avoided all investigation precisely because he realized that proof of a practice of sexual harassment would be a serious matter for his agency indeed. Alternatively, if he in fact did consider the whole matter trivial, he was only compounding Bundy's difficulty in obtaining relief from harassment and thus, in a sense, compounding the Title VII violation.
Id. 203 Ct.Cl. 207, 488 F.2d at 1033; accord, Detroit Police Officers Ass'n v. Young, 446 F.Supp. 979, 1003 (E.D.Mich. 1978). The last element in this formula is the innovation most relevant to Bundy's case: the plaintiff can make out the prima facie case in part by showing discrimination independent of the back pay claim but obviously relevant to the question of the employer's motive in denying the plaintiff promotion. But we also note the important omission in this formula. Unlike the McDonnell formula, this one does not require the plaintiff to draw the relevant comparison between himself and other employees who were in fact promoted — or even to prove that other employees were promoted at the time his own request for promotion was denied. We infer that in Pettit the court intended that if any other employees were promoted at roughly the time the plaintiff sought promotion and if these employees were distinctly better qualified, the employer would have to prove these facts as part of his rebuttal. This issue arises in text infra when we instruct the District Court in the present case on the possible elements of the agency's rebuttal.