failure of the plaintiffs to register a complaint about the sexual advances does not at all indicate that the advances were welcome. Rather, the plaintiffs' failure to complain to someone at Allison Reed Group, which operates out of a separate facility in Warwick, is a reflection of Allison Reed Group's failure to have a policy or readily accessible personnel available to handle sexual harassment complaints.
In short, the clear weight of the evidence indicates that neither plaintiff welcomed the sexual advances of Smith and Marsella. Thus, both plaintiffs have satisfied the second Chamberlin factor.
Third, there is no question that the harassment of the plaintiffs was sexually motivated.
Fourth, the sexual harassment affected a "tangible" aspect of the plaintiffs' jobs. Chamberlin requires a plaintiff to prove that his reaction to sexual advances "'affected tangible aspects of . . . [his] compensation, terms, conditions, or privileges of employment . . . .'" Chamberlin, 915 F.2d at 784 (quoting Lipsett, 864 F.2d at 898).
Here, the plaintiffs have shown that the harassment affected a tangible aspect of the conditions of their employment. Indeed, this is the quintessential quid pro quo case -- the plaintiffs understood that they would lose their jobs if they did not submit to the sexual demands of Smith. In short, the harassment imposed a new condition on the plaintiff's employment: if they wanted to keep their jobs, they needed to comply with the condition of sexual harassment. The obvious tangible job benefit the plaintiffs received for succumbing to the harassment was the retention of their employment. See Henson, 682 F.2d at 909 ("The acceptance or rejection of the harassment by an employee must be an express or implied condition to the receipt of a tangible job benefit or the cause of a tangible job detriment in order to create [quid pro quo] liability . . . .").
Fifth, not only is Smith directly liable under Title VII for his acts, but Allison Reed Group is also liable under the doctrine of respondeat superior. Employers are held strictly liable in cases of quid pro quo sexual harassment. Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir. 1989). The Supreme Court in Meritor Savings Bank provided the rationale for this rule by citing to the following argument of the E.E.O.C.: "where a supervisor exercises the authority actually delegated to him by his employer, by making or threatening to make decisions affecting the employment status of his subordinates, such actions are properly imputed to the employer whose delegation of authority empowered the supervisor to undertake them." Meritor Savs. Bank, 477 U.S. at 70 (emphasis added).
In sum, each plaintiff has satisfied Chamberlin's five requirements for making out a case of quid pro quo sexual harassment. The clear weight of the credible evidence indicates that the plaintiffs were forced to engage in intimate sexual contact as a condition of retaining their employment at Techni-Craft. Smith's bold-faced denials of the sexual incidents is unconvincing, and Allison Reed Group's legal argument that such conduct is outside the scope of his employment is meaningless in the face of strict liability.
3. Hostile Work Environment Sexual Harassment
The sexual harassment inflicted upon the plaintiffs also can be characterized as hostile environment sexual harassment. Unlike quid pro quo harassment which occurs when a supervisor promises an economic job benefit in exchange for sexual favors, hostile environment harassment occurs when "verbal or physical conduct of a sexual nature . . . has the purpose or effect of . . . creating an intimidating, hostile, or offensive work environment." E.E.O.C. Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604.11(a).
Although all quid pro quo cases do not per se qualify as hostile environment cases, Chamberlin, 915 F.2d at 783, here the harassment drastically altered the conditions of plaintiffs' employment and created a hostile and abusive work environment. Meritor Savs. Bank, 477 U.S. at 67. See also Henson, 682 F.2d at 909 (listing the elements of a hostile environment claim). The frequency and the nature of the unwelcome sexual activity certainly was severe and pervasive. Meritor Savs. Bank, 477 U.S. at 67. Sexual advances to the plaintiffs were made for months, and the harassment completely infested their work environment.
Smith is obviously liable for creating the hostile work environment. Whether Allison Reed Group could be held liable solely on the theory of hostile environment sexual harassment is an academic question. The Court has already determined that Allison Reed Group is strictly liable for the quid pro quo harassment of the plaintiffs. Whether it could be held liable solely on the basis of hostile environment sexual harassment would depend on principles of agency law, id. at 72, which need not be explored now.
Having concluded that the plaintiffs proved their claim of sexual harassment under Title VII, the next concern is awarding them appropriate relief. The relief afforded by a Title VII action is very clear. 42 U.S.C. § 2000e-5(g) states:
If the court finds that the respondent has intentionally engaged in . . . an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . ., or any other equitable relief as the court deems appropriate.
42 U.S.C. § 2000e-5(g). Compensatory and punitive damages clearly are not available to Title VII plaintiffs. Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 159 (1st Cir. 1990). Nominal damages are considered to be an improper Title VII remedy by the Seventh Circuit. Swanson v. Elmhurst Chrysler Plymouth, Inc., 882 F.2d 1235 (7th Cir. 1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 758, 107 L. Ed. 2d 774 (1990). However, several other circuit courts, including the First Circuit, have suggested that nominal damages can be awarded under Title VII. T & S Serv. Assocs., Inc. v. Crenson, 666 F.2d 722, 728 n. 8 (1st Cir. 1981). See e.g. Katz v. Dole, 709 F.2d 251, 253 n. 1 (4th Cir. 1983); Henson, 682 F.2d at 905-06 & n. 12; Joshi v. Florida State Univ., 646 F.2d 981, 991 n. 33 (5th Cir. Unit B 1981).
1. Plaintiff Showalter
In this case, Showalter was not forced out of his job by the harassment. Rather, a back injury has put him on worker's compensation. Clearly, Showalter is not entitled to backpay. There is, however, the likelihood that Showalter will recover from his back injury and find himself working again at Techni-Craft. Although Smith is no longer employed by Allison Reed Group, the company still suffers from the lack of a grievance procedure for harassed employees. Therefore, it is appropriate for the Court to enjoin Allison Reed Group from allowing the future sexual harassment of Showalter. See, e.g., Ross v. Double Diamond, Inc., 672 F. Supp. 261, 277 (N.D. Tex. 1987). Allison Reed Group is directed to the E.E.O.C.'s Guidelines on Sexual Harassment:
Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.