ERVIN, Circuit Judge:
Deborah Ann Katz is a former federal air traffic controller whose employment was terminated by the Federal Aviation Administration (FAA) in September, 1981, for alleged participation in an illegal strike against the FAA. Prior to that, on June 9, 1981, Katz, after exhausting her administrative remedies, began the present action in the United States District Court for the District of Columbia, naming the FAA's statutory superior, the Secretary of Transportation, as defendant. Katz' complaint claimed that she had been subjected to sexual harassment and to disparate and adverse personnel actions amounting to gender discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 (1981). The action was subsequently transferred to the United States District Court for the Eastern District of Virginia. At the close of the trial, that court found that Katz had not been the object of intentional discrimination on the basis of her sex and entered judgment for the Secretary. The court granted Katz limited relief on her prayer for a correction of her government employment files. Katz appeals. We conclude that Katz did make out a case of sexual harassment actionable under Title VII but find no error in the district court's handling of Katz' disparate treatment claim. We therefore affirm in part and reverse in part.
Katz entered the federal air traffic controller training program in 1974. In 1977, she was assigned to the Washington Air Traffic Control Center, and in August, 1980, she was certified as a fully trained controller. At the Washington Center, Katz was assigned to controller crew 1F, supervised by John J. Sullivan. She was the only woman on the crew. She was transferred to another crew in May, 1981, at her own request. While working on crew 1F and under Sullivan's supervision, Katz alleges she was subjected to substantial sexual harassment by FAA employees, including Sullivan and other supervisory personnel. She also asserts that she brought this harassment to the attention of Sullivan, who responded with further sexual harassment, and of Sullivan's superior, who reacted with indifference.
FAA supervisory personnel had been alerted to the problem. One of the Secretary's witnesses, the manager of the controller training program, testified that he was aware from female workers' complaints that sexual intimidation was a "common" experience at the agency. Sullivan testified that he had heard controllers referring to Katz by obscenities. Sullivan himself admitted that he had suggested to Katz that her problems with another controller, about whose sexual advances Katz was complaining, might be solved if Katz submitted to him. Uncontradicted testimony by Katz indicated that the supervisor of crew 2F once stated in her presence that he would consider accepting her transfer to his crew because of her sexual abilities. Katz' witnesses corroborated Katz' testimony that Sullivan and other crew members frequently referred to Katz by obscene words.
The record is devoid of significant evidence to contradict Katz' claims that her employment by the FAA was conditioned by a pattern of personally directed sexual insult and innuendo. Furthermore, despite their knowledge of this harassment, her employer's supervisory personnel did nothing effectual to stop it, and indeed, in Sullivan's case, took part in it.
In Garber v. Saxon Business Products, Inc., 552 F.2d 1032 (4th Cir.1977), we recognized that "an employer policy or acquiescence in a practice" of sexual harassment can constitute a violation of Title VII. When such harassment pervades the workplace, or is condoned or carried out by supervisory personnel, it becomes an illegal and discriminatory condition of employment that poisons the work environment. See 42 U.S.C. § 2000e-2(a)(1). Sexual harassment erects barriers to participation in the work force of the sort Congress intended to sweep away by the enactment of Title VII. See Bundy v. Jackson, 641 F.2d 934, 944 (D.C.Cir.1981). See generally Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 n. 13, 98 S.Ct. 1370, 1375 n. 13, 55 L.Ed.2d 657 (1978) (in forbidding gender discrimination Congress intended to prohibit the "entire spectrum" of disparate treatment on the basis of sex).
Sexual harassment, like other forms of gender discrimination, can take many forms, but the Eleventh Circuit has identified two basic varieties: "harassment that creates an offensive environment (`condition of work') and harassment in which a supervisor demands sexual consideration in exchange for job benefits (`quid pro quo')." Henson v. City of Dundee, 682 F.2d 897, 908 n. 18 (11th Cir.1982), citing C. MacKinnon, Sexual Harassment of Working Women 32-47 (1979). See 29 C.F.R. § 1604.11(a) (similar
Although such a claim of sexual harassment might be analyzed under the familiar Title VII disparate treatment formula,
Katz satisfied the requirements for proving sexual harassment actionable under Title VII. Her testimony and that of her witnesses that she was the object of sustained and non-trivial harassment was corroborated by the Secretary's own witnesses. Furthermore, the record shows that the FAA was or should have been aware of the problem both because of its pervasive character and because of Katz' specific complaints directed to her superiors. No significant effort was made to end the harassment. While the agency did have an articulated policy against sexual harassment which involved seminars on the issue for its supervisors, this policy was not effective, and was known not to be effective by FAA supervisory personnel. On the basis of the undisputed facts in the record, we hold that Katz was entitled to prevail on her claim of sexual harassment.
Katz also appeals from the district court's rejection of her disparate treatment claim. Katz did show that she encountered scheduling difficulties on some occasions in arranging familiarization rides on airplanes, which are available to all controllers. She failed, however, to rebut the agency's articulated legitimate reason for her difficulties, namely, the demands of her ongoing training program. Katz also alleged that the denials of her first three requests for a transfer from crew 1F were discriminatory in motivation. Once again, the FAA articulated unrebutted legitimate reasons for its actions, on one occasion, a general policy against transfers, and on the other two, the absence of an open position on the crew to which she wished to be transferred.
Katz experienced difficulties with Sullivan over the proper reporting of two injuries received in the FAA cafeteria. After Katz fell in September, 1978, Sullivan initially refused to put her on "traumatic injury leave," as opposed to sick or annual leave, although he later did so. After a similar injury in September, 1979, Sullivan again refused at first to list her on traumatic injury leave, and when he eventually did so, indicated that he had some doubts about the claimed extent of her injury. Sullivan's denial of any discriminatory motive, and other testimony that new injury-reporting guidelines were creating great confusion among supervisory personnel, support the district court's finding that these incidents were the result of misunderstanding rather than discriminatory intent.
On one occasion Sullivan refused to allow Katz, who was ill and at home, to speak to another controller, Moore. The evidence
The district court did find that Katz' government records incorrectly debited her with eight hours of annual leave that should have been listed as sick leave and ordered the records corrected, but found no discriminatory motive behind the mistake. This finding is not clearly erroneous.
Katz argues that because the district court incorrectly found that she was not the victim of sexual harassment, its findings on her other claims of gender discrimination must also be set aside. We disagree. Katz' sexual harassment claim required the district court to apply Title VII in an area almost totally unexplored by our previous decisions. In contrast, her disparate treatment claims presented no novel legal questions. Since the record supports the district court's factual findings on those claims, we must uphold its conclusions.
The district court's judgment for the Secretary on Katz' disparate treatment claims is affirmed. The judgment against Katz on the issue of sexual harassment is reversed, and the case remanded for a consideration of remedies.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (citations omitted).