WOLLMAN, Circuit Judge.
Gus Construction Co., Inc. and one of its foremen, John Mundorf, appeal from a judgment
Mundorf hired Ms. Hall, Ms. Baxter and Ms. Ticknor in April 1984 to work for Gus Construction Co. as "flag persons" or traffic controllers at road construction sites in various Iowa counties. All of the women were in their thirties. Ms. Baxter and Ms. Hall were single mothers who sought this employment so as to be better able to support young children. No other women worked on the crew. One flag person stood at one end of the section of the road under construction, another at the other end, and the third drove a pilot truck leading the motor vehicle traffic through the construction area.
Immediately after the women started work, male members of the construction crew began to inflict verbal sexual abuse on the women. The men incessantly referred to the women as "fucking flag girls." The men nicknamed Ms. Ticknor "Herpes" after she developed a skin reaction due to a sun allergy. On one occasion, Ms. Baxter returned to her car and found the name "Cavern Cunt" written in the dust on the driver's side, and "Blond Bitch" written on the passenger side where Ms. Hall sat. Male crew members repeatedly asked Ms. Hall if she "wanted to fuck" and requested that Ms. Hall and Ms. Baxter engage in oral sex with them. Mundorf was present during some of these incidents, and on one occasion used the term "fucking flag girls." Each of the women told Mundorf that the verbal abuse offended and upset her. Mundorf talked to the crew members about their conduct, but the verbal abuse soon resumed and continued up to the time the women quit their jobs.
In addition to the verbal abuse, male coworkers subjected Ms. Hall and Ms. Baxter to offensive and unwelcomed physical touching. Male crew members would corner the women between two trucks, reach out of the windows and rub their hands down the women's thighs. They grabbed Ms. Hall's breasts. One crew member picked up Ms. Hall and held her up to the cab window so other men could touch her. Mundorf observed this incident but did nothing.
All three women also experienced other types of abuse at work. Male crew members frequently pulled down their pants and "mooned" the women while they were working. One crew member exposed himself to Ms. Hall. Male crew members flashed obscene pictures of naked couples engaged in oral intercourse at the women. A male crew member urinated in Ms. Hall's water bottle. Several men urinated in the gas tank of Ms. Ticknor's car, causing it to malfunction. When carbon monoxide fumes leaked from the pilot truck causing the driver to become drowsy, the mechanic ignored the women's complaints. The women were forced to rotate their positions so that no one was in the truck for more than a short period of time. Later, a male crew member used the truck, and it was immediately repaired. Male crew members would refuse to give the women a truck to take to town for bathroom breaks. When the women would relieve themselves in the ditch, male crew members observed them through surveying equipment. Mundorf knew about this practice, but he disciplined no one.
The women quit their jobs with Gus Construction Co. in August 1984. After complying with the procedural prerequisites regarding right-to-sue notices from the Equal Employment Opportunity Commission (EEOC) and the Iowa Civil Rights Commission, the women commenced this action, claiming that they were constructively discharged from their employment as a result of the opprobrious conduct of their male coworkers and foreman Mundorf. After a bench trial, the magistrate found for the women. The court awarded the women back pay, damages for emotional distress and attorneys' fees.
Sexual discrimination that creates a hostile or abusive work environment is a violation of Title VII of the Civil Rights Act of 1964.
Appellants argue that each of the women failed to prove all of the elements necessary to establish her sexual harassment claim.
We must assess the trial court's factual finding that the women were subjected to sexual harassment under the clearly erroneous standard of review. Fed.R.Civ.P. 52(a); Yates v. Avco Corp., 819 F.2d at 634; see also Chambers v. Omaha Girls Club, Inc., 834 F.2d 697, 702 (8th Cir.1987). We may reverse the district court's finding of sexual harassment only if we are "`left with the definite and firm conviction that a mistake has been committed.'" Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)).
In arguing that only conduct of a sexual nature should be considered in a sexual harassment claim, appellants rely on the language of 29 C.F.R. § 1604.11(a) (1986), which defines sexual harassment as "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." Id. Appellants point to various incidents that they contend were not sexual and should not have been considered. For example, they argue that calling Ms. Ticknor "Herpes" might have been cruel, but that it was not conduct of a sexual nature.
Although we have not previously considered this issue, other courts of appeals have held that the predicate acts underlying a sexual harassment claim need not be clearly sexual in nature. See Hicks v. Gates Rubber Co., 833 F.2d at 1415 (evidence of threats of physical violence and incidents of verbal abuse — calling plaintiff "Buffalo Butt" — properly considered); McKinney v. Dole, 765 F.2d 1129, 1139 (D.C.Cir.1985) (acts of physical aggression properly considered). In McKinney, the court stated:
Id. at 1138 (footnote omitted).
We agree with the rationale expressed in McKinney, and we hold that the district court correctly considered incidents of harassment and unequal treatment that would not have occurred but for the fact that Ms. Hall, Ms. Ticknor and Ms. Baxter were women. Intimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances. Title VII "`evinces a Congressional intention to define discrimination in the broadest possible terms. Congress chose neither to enumerate specific discriminatory practices, nor to elucidate in extenso the parameter of such nefarious activities.'" Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506, 514 (8th Cir.) (quoting Rogers v. Equal Employment Opportunity Comm'n, 454 F.2d 234, 238 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972)), cert. denied 434 U.S. 819, 98 S.Ct. 60, 54 L.Ed.2d 76 (1977). In Firefighters, we held that the city's duty to provide a nondiscriminatory working environment required it to provide by regulation that on-duty firefighters would not be permitted to use city kitchen facilities if the firefighters' supper clubs excluded blacks from membership. Id. at 515. We cannot believe that had the supper clubs excluded women, the court would have held the exclusion not to be actionable because it was not "conduct of a sexual nature." Although appellants correctly note that the definition of sexual harassment in the EEOC regulation emphasizes explicitly sexual behavior, the regulations do not state that other types of harassment should not be considered. Furthermore, an enforcing agency's guidelines are not controlling upon the courts. Meritor Sav. Bank, FSB v. Vinson, 106 S.Ct. at 2405.
Appellants also argue that requiring a plaintiff to prove both "unwelcome sexual harassment" and that "the harassment was based on sex" implies that the harassment must be sexual in nature. We discussed the element of unwelcome sexual harassment in Moylan v. Maries County, 792 F.2d at 749, focusing on the word "unwelcome." "In order to constitute harassment, the conduct must be `unwelcome' in the sense that the employee did not solicit or invite it, and the employee regarded the conduct as undesirable or offensive." Id. at 749. Thus, none of our previous cases hold that the offensive conduct must have explicit sexual overtones.
We also reject appellants' contention that the district court erroneously considered all of the women's claims together in determining that the harassment was sufficiently pervasive and severe to constitute a violation of Title VII. We are convinced that the harassment directed toward each woman was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working
Appellants' final challenge to the district court's finding of sexual harassment is that the trial court erred in imposing employer and supervisory liability. Appellants argue that the offending employees were not agents of Mundorf or Gus Construction Co. and that the employees acted outside the scope of their employment. Appellants contend that to establish employer liability under the Iowa Civil Rights Act, the court must apply Iowa agency principles. Appellants rely on Sandman v. Hagan, 261 Iowa 560, 154 N.W.2d 113 (1967), where a plumber struck a sewer inspector with a shovel. The court held that the plumber acted outside the scope of his employment because the employer's business was not furthered by the employee's violent act. Id. at 118.
In Meritor, the Supreme Court declined to announce a definitive rule on employer liability under Title VII, but determined that "Congress wanted courts to look to agency principles for guidance in this area." 106 S.Ct. at 2408. The Court reasoned that Congress' decision to define "employer" as any "agent" of an employer, 42 U.S.C. § 2000e(b), suggests that Congress did not intend to hold employers strictly liable for the acts of their supervisors. Id. But cf. 29 C.F.R. § 1604.11(c) (1986) (holding an employer liable for the acts of its agents without regard to notice). Nevertheless, "absence of notice to an employer does not necessarily insulate that employer from liability." 106 S.Ct. at 2408.
Meritor involved harassment by a supervisor. This case involves harassment mainly by coworkers. In Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1421 (7th Cir.1986), a race discrimination case, the court considered whether a corporation could be held liable for employment discrimination when the perpetrators of the harassment were the plaintiff's fellow workers. The court reasoned that a company cannot be held liable for an isolated racial slur. But a company will be liable if management-level employees knew, or in the exercise of reasonable care should have known, about a barrage of offensive conduct.
Id. at 1421-22 (citations omitted). See also Taylor v. Jones, 653 F.2d 1193, 1199 (8th Cir.1981) (holding employer liable for racially hostile working environment based on constructive knowledge).
In this case, Mundorf, as the agent of Gus Construction Co., had both actual and constructive notice of the campaign of harassment against the three women. Each of the women met with Mundorf individually to complain of the treatment they were receiving from their coworkers. The women also met with Mundorf as a group to discuss the hostile work environment. Furthermore, Mundorf observed many of the incidents. He knew that the men bombarded the women with sexual insults and abusive treatment. Even if Mundorf did not know everything that went on, the incidents of harassment here, as in Hunter, were so numerous that Mundorf and Gus Construction Co. are liable for failing to discover what was going on and to take remedial steps to put an end to it.
Appellants next contend that the district court erred in awarding damages for emotional distress under the Iowa Civil Rights Act, Iowa Code Chapter 601A. Specifically, they contend that a complainant in a civil rights case under Chapter 601A must make a showing equivalent to that required under the Iowa common law tort of intentional infliction of emotional distress. They also contend that Iowa Code § 601A.15(8)(a)(8) violates the Iowa Constitution by allowing the Iowa Civil Rights Commission to award damages without a jury trial. Appellees respond that these issues were raised for the first time on appeal and are therefore waived.
A. Necessary Showing
In Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Comm'n, 394 N.W.2d 375 (Iowa 1986), the Iowa Supreme Court acknowledged that a "troublesome question exists as to the showing necessary" to establish a claim for emotional distress damages under the Iowa civil rights law. Id. at 383. The court noted that jurisdictions are split on this issue. Id. (citing Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 498-99, 468 P.2d 216, 218-19, 86 Cal.Rptr. 88, 90-91 (1970) (requiring a showing of outrageous conduct); Gray v. Serruto Builders, Inc., 110 N.J.Super. 297, 315, 265 A.2d 404, 414 (1970) (recovery allowed because emotional distress was proximately caused by racial discrimination); Williams v. Joyce, 4 Or.App. 482, 495, 479 P.2d 513, 519 (1971) (allowing recovery of emotional distress damages for injury proximately caused by racial discrimination)).
We need not resolve this issue, because we agree with appellees that it was not properly preserved for review. Appellants raised this issue for the first time on appeal.
B. Constitutionality of § 601A.15(8)(a)(8)
Appellants argue that the award of compensatory damages by an agency under § 601A.15(8)(a)(8) deprives the defendant of his constitutional right to a jury trial. Iowa Const. art. I, § 9. Individuals may
The Iowa Supreme Court has construed § 601A.15(8)(a)(8) as authorizing an administrative agency to award compensatory damages but has not decided whether the statute is constitutional. Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Comm'n, 394 N.W.2d at 382-83. The court noted, however, that other jurisdictions allow agencies to award compensatory damages. Id. at 382 n. 1.
Appellants raised the constitutionality of § 601A.15(8)(a)(8) for the first time in a posttrial motion. The district court correctly noted that the issue could be considered waived because it was not addressed before trial. When the constitutionality of a statute is raised for the first time in a postjudgment motion, the trial court is correct in not considering the issue. Logan v. Andrus, 640 F.2d 269, 271 (10th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981). Likewise, an appellate court will not consider the issue on appeal. Id. See also Minnesota Ass'n of Health Care Facilities, Inc. v. Minnesota Dept. of Public Welfare, 742 F.2d 442, 445 (8th Cir.1984) (state constitutional claims were not advanced in second amended complaint, and court did not consider them on appeal), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985); Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986) (motion to alter judgment cannot be used to raise arguments which could have been made before judgment issued). We therefore uphold the award of damages for emotional distress under the Iowa Civil Rights Act.
Appellants' final assessment of error is that the damage awards for emotional distress were excessive. For the humiliation and distress of being harassed, the court awarded Ms. Ticknor $15,000, and Ms. Baxter and Ms. Hall, who had been subjected to physical touching, $20,000. In a bench trial, ascertaining the plaintiff's damages is a form of factfinding that can be set aside only if clearly erroneous. Webb v. Arresting Officers, 749 F.2d 500, 501-02 (8th Cir.1984). "`[T]he inadequacy or excessiveness of an award is basically a matter for the trial court. We have intervened only in those rare situations where we are pressed to conclude that there is "plain injustice" or a "monstrous" or "shocking" result.'" Id. (quoting Occhino v. United States, 686 F.2d 1302, 1305 (8th Cir.1982)).
We conclude that awards of $15,000 and $20,000 do not constitute a shocking result. Similar amounts have been awarded in prior cases. See, e.g., Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d at 1425 (upholding an award of $25,000 for the humiliation and distress of being harassed and then fired on racial grounds); Block v. R.H. Macy & Co., 712 F.2d 1241, 1245 (8th Cir.1983) (upholding $12,402 award for mental anguish, humiliation, embarrassment and stress). The district court found that the women "suffered considerable emotional distress, including embarrassment, humiliation, personal degradation and loss of self-esteem." Mem. op. and order at 16. We will not second-guess the trial judge's assessment of intangible harms.
In affirming the district court's finding of liability and determination of damages, we note that the conduct and language complained of went far beyond that which even the least sensitive of persons is expected to tolerate in this era of generally impoverished discourse. In this day when certain so-called comedians command millions for spewing forth on film language of the drill field, perhaps each of us, consciously or not, has become inured to that which even two short decades ago might have been considered beyond the pale of colloquial speech. Title VII does not mandate an employment environment worthy of a Victorian salon. Nor do we expect that our holding today will displace all ribaldry on the roadway. One may well expect that in the heat and dust of the construction
The judgment is affirmed.