Is sexual harassment of a victim behind her back against the law?

Over the weekend, I caught up on a few older cases I had intended to blog about earlier. The one today on which I’ll focus has some “disturbing facts.”

At least that’s how one of the Fifth Circuit judges deciding the case viewed them:

[The plaintiff] is a firefighter. But at least two of her male superiors … and perhaps countless others treated her as nothing more than a sexual object. They accessed a private, intimate, nude video that [she] had obviously made exclusively for her husband. They did so without her knowledge or permission. And they watched it repeatedly, both on and off-duty, alone and in front of co-workers, for over nine years. The only reason [the plaintiff] ever discovered this most invasive violation of privacy was because [one of the supervisors] finally confessed to her husband. Even to this day, [the plaintiff] cannot be sure whether anyone else at the Department has already seen the video—or may watch it in the future.

Terrible, right? Even the defendant conceded to the court that the supervisors who watched the video repeatedly were “morally reprehensible.”

But the issue, as the court framed it, “is not whether this behavior was immoral, but whether it is actionable under Title VII of the 1964 Civil Rights Act.”

Here, the plaintiff claimed that her employer created a hostile work environment based on her sex. To prevail on this claim, the plaintiff must prove that she perceived the bad behavior to be so severe or pervasive as to alter the conditions of her employment and create an abusive working environment.

The classic cases of sexual harassment involve sexual jokes, propositions, touching, or other behavior directed at the plaintiff in her presence.

So, what about immoral behavior committed behind the plaintiff’s back? In his concurrence, Judge Ho described this dilemma:

The theoretical challenge in this case is the subjective element. Because a plaintiff cannot “in fact . . . perceive” conduct as hostile if they are unaware of it. And “if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.”

But Judge Ho and the other two judges deciding the case readily acknowledged (and the defendant agreed) that the behavior about which the plaintiff complained was subjectively hostile. Why? The defendant still employed the plaintiff when she learned what her supervisors were doing behind her back. Thus, their behavior could have (and did) alter the conditions of her employment. Their behavior caused her PTSD, which forced her to stop working.

(Conversely, the plaintiff would have lacked a Title VII claim had she resigned for other reasons and then learned about her supervisors’ behavior after her employment ended.)

Another problem for the defendant here was that it had an anti-harassment policy. Wait, what?

Technically, the policy itself wasn’t the issue. But the policy tasked supervisors with an affirmative duty to pass complaints of harassment up the chain of command. Indeed, another element of a hostile work environment is when an employer knows (or should have known) about the alleged harassment and fails to take prompt remedial action. Therefore, the defendant was hard-pressed to explain why the court should not attribute the supervisor’s knowledge of harassment to it.

So, sexual harassment of a victim behind her back can violate Title VII. And when her supervisors continue the behavior rather than report it, well, hopefully, your employment practices liability insurance premiums are paid up.