[N/E Digest I]
VICARIOUS LIABILITY OF EMPLOYER FOR ACTIONS OF SUPERVISOR
In June, the United States Supreme Court issued two Title VII sexual discrimination
decisions that spoke to the vicarious liability of an employer for the actions of a supervisor where
no tangible adverse employment action was taken. Applying general agency principles, the
Court held that vicarious liability is applicable, but that the employer may raise the affirmative
defense of reasonable care and failure by the complainant to take advantage of preventative or
corrective opportunities provided by the employer. Specifically, in Burlington
Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (June 26, 1998), the Court held that when a
party seeks to impose vicarious liability based on an agent's misuse of delegated authority, the
Restatement (Second) of Agency § 219(2)(b)'s "aided in the agency relation"
rule provides the appropriate analysis. The Court held that
In order to accommodate the agency principles of vicarious liability for harm
caused by misuse of supervisory authority, as well as Title VII's equally basic policies of
encouraging forethought by employers and saving action by objecting employees, we
adopt the following holding in this case and in Faragher v. Boca Raton, post,
also decided today. An employer is subject to vicarious liability to a victimized
employee for an actionable hostile environment created by a supervisor with immediate
(or successively higher) authority over the employee. When no tangible employment
action is taken, a defending employer may raise an affirmative defense to liability or
damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ.
Proc. 8(c). The defense comprises two necessary elements: (a) that the employer
exercised reasonable care to prevent and correct promptly any sexually harassing
behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm
otherwise. While proof that an employer had promulgated an anti-harassment policy with
complaint procedure is not necessary in every instance as a matter of law, the need for a
stated policy suitable to the employment circumstances may appropriately be addressed
in any case when litigating the first element of the defense. And while proof that an
employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is
not limited to showing any unreasonable failure to use any complaint procedure provided
by the employer, a demonstration of such failure will normally suffice to satisfy the
employer's burden under the second element of the defense. No affirmative defense is
available, however, when the supervisor's harassment culminates in a tangible
employment action, such as discharge, demotion, or undesirable reassignment.
Similarly, in Faragher v. Boca Raton, Fla., 118 S.Ct. 2275 (June 26, 1998),
also a Title VII case, the Court held that an employer is vicariously liable for actionable
discrimination caused by a supervisor, but subject to an affirmative defense looking to the
reasonableness of the employer's conduct as well as that of a plaintiff victim.
In these decisions, the Court observed that analysis of Title VII cases as being either a
"quid pro quo" or "hostile work environment" type are of limited utility.
Where a claim is based on hostile work environment, a showing must be made of severe or
pervasive conduct. When discrimination is thus proved, the factors stated in the quoted language
above, not the categories quid pro quo and hostile work environment, control on the
issue of vicarious liability.
In a Title IX decision, Gebser v. Lago Vista Independent School
District, 118 S.Ct. 1989 (June 22, 1998), however, the Court held that damages may
not be recovered for teacher-student sexual harassment in an implied private action unless a
school district official who, at a minimum, has authority to institute corrective measures on the
district's behalf, has actual notice of, and is deliberately indifferent to, the teacher's misconduct.
[Editor's note: There are many similarities between DOL whistleblower adjudications and
Title VII cases. In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5 and
93-CAA-1 (Sec y Jan. 26, 1996), the Secretary found that the Title VII decision in Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986), regarding a hostile work environment is
equally
applicable to environmental whistleblower cases. A close analysis of the pertinent whistleblower
provision and Title VII should be made, however, before assuming that Title VII precedent
governs DOL whistleblower proceeding. CompareReid v. Methodist Medical
Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995) (finding that significant language
difference between Title VII and the environmental whistleblower provisions rendered it
inappropriate to read the breadth of Title VII's coverage into the environmental whistleblower
provisions in regard to the interpretation of the term "employee").
See also Coppack v. Northrop Gumman
Corp., 1998-SWD-2 (ALJ July 24, 1998)
(ALJ interpreted Varnadore as requiring, inter alia, "the existence of
respondeat superior liability or whether the employer either knew or should have known
of the harassment and failed to take prompt, remedial action." Slip op. at 36.)]
See alsoWilliams v. Administrative Review Board, USDOL,
__ F.3d __, No. 03-60028 (5th Cir. July 15, 2004), 5th Cir. decision on applicability of Ellerth/Faragher
hostile work environment analysis to ERA whistleblower complaints.]
Under the employee protection provision of the SWDA, 42 U.S.C.
§ 6971(a), reference is made to "any proceeding under
this chapter." The referenced chapter is "Chapter 82,
Solid Waste Disposal," 42 U.S.C. §§ 6901-6992k
(1988), which governs, inter alia, the treatment, storage,
transportation, and disposal of hazardous waste. Subchapter III,
42 U.S.C. §§ 6921-6939b.
Where the chemicals used by a respondent are regulated under the
Act, 40 C.F.R. § 261.33(f) (1991), and the respondent is
subject to regulation as a "small quantity generator,"
40 C.F.R. § 261.5(a) and (g), complaints about chemical
storage and disposal are covered substantively under the SWDA
whistleblower provision.
Williams v. TIW Fabrication & Machining, Inc.,
88-SWD-3 (Sec'y June 24, 1992).
CERCLA NOW GOVERNED BY 29 C.F.R. PART 24
[N/E Digest I A 1]
In a Final Rule establishing the Administrative Review Board,
29 C.F.R. § 24.1 was changed to specifically include the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. 9610 as one of the employee protection
provisions implemented by Part 24. Final Rule,
Establishment of the Administrative Review Board, 61 Fed.
Reg. 19982, 19985 (May 3, 1996).
The Nuclear Regulatory Commission takes the position that it can
take an enforcement action pursuant to 10 C.F.R. § 50.7
based on discrimination by an employer against quality assurance
personnel for engaging in protected activity even though the
Department of Labor has not made a prior determination that
section 210 of the Energy Reorganization Act was violated. NRC
and DOL have complementary, yet independent authorities and
responsibilities in protecting employees from discrimination and
retaliation for raising matters bearing on nuclear safety.
Section 210 empowers DOL to grant remedies directly to employees
who have suffered discrimination for engaging in protected
activities; it does not limit NRC's authority under the Atomic
Energy Act to investigate alleged discrimination and take action
to combat it. Duke Power Co. (Catawba Nuclear Station,
Units 1 and 2), 51 Fed Reg 25127 (docket nos. 50-413, 50-
414, EA 84-93) (order imposing civil money penalty, July 10,
1986).
[N/E Digest I A 2]
GAO REPORTS
On September 2, 1997, the U.S. Government Accounting Office issued a Report to the
Chairman, Subcommittee on Oversight and Investigations, Committee on Commerce, House of
Representatives, Nuclear Power Safety: Industry Concerns
With Federal Whistleblower Protections Systems (GAO/HEHS-97-162, Sept. 2,
1997). This report is a follow-up to an earlier report entitled Nuclear Employee Safety Concerns: Allegation System Offers
Better Protection, but Important Issues Remain (GAO/HEHS-97-51, Mar. 31,
1997), which addressed concerns by some members of Congress that laws, as implemented by
NRC and DOL, have not adequately protected nuclear power industry workers who raise health
and safety issues. The follow-up report discusses how recent NRC and DOL actions and
proposals to strengthen whistleblower protections have been received by the nuclear power
industry.
[N/E Digest I A 2]
NRC NOTICE ON "SAFETY-CONSCIOUS WORK ENVIRONMENT"
On February 26, 1997, the NRC published in the Federal Register a notice requesting
public comment on strategies to address the need for its licensees to establish and maintain a
safety-conscious work environment. Request for public
comment, Safety-Conscious Work Environment, 62 Fed. Reg. 8785 (1997). The
notice proposes, inter alia, that
(b) When circumstances occur that could adversely impact the
safety-conscious environment, or when conditions arise that indicate the potential
emergence of an adverse trend in the safety-conscious work environment, the licensee
shall take action as required to ensure that the safety-conscious environment is preserved.
Indicators that may be considered as possible evidence of an emerging adverse trend
include, but are not limited to:
(1) Adverse findings by the Department of Labor or the NRC Office of
Investigation (OI) concluding that discrimination has occurred against employees for
engaging in protected activity, including a finding of the existence of a hostile work
environment;
* * *
NRC STATEMENT OF POLICY
[N/E Digest I A 2 and XII D 1 d]
On May 14, 1996, the Nuclear Regulatory Commission issued a
policy statement "to set forth its expectation that
licensees and other employers subject to NRC authority will
establish and maintain safety-conscious environments in which
employees feel free to raise safety concerns, both to their
management and to the NRC, without fear of retaliation."
Freedom of Employees in the Nuclear
Industry To Raise Safety
Concerns Without Fear of Retaliation; Policy Statement,
61 Fed. Reg. 24336 (May 14, 1996). The policy statement, inter
alia, stresses that management should provide leadership in
this regard, that licensees have a responsibility for the acts of
their contractors, and that although free to come to the NRC at
any time, employees should normally raise concerns with the
involved licensee. The policy statement notes that the "NRC
should normally be viewed as a safety valve and not as a
substitute for raising safety concerns." 61 Fed. Reg. at
24340.
NRC; RELATIVE ROLES OF NRC AND DOL PURSUANT TO THE
WHISTLEBLOWER PROTECTION PROVISION THE ERA [N/E Digest I A 2]
In a decision discussing the NRC's authority to issue a
subpoena when investigating whether a respondent's past treatment
of whistleblowers posed a threat to public health and safety, the
court in United States of America v. Construction Products
Research, Inc., 1996 U.S. App. LEXIS 202 (2d Cir. 1996)
(related to 93-ERA-25), discussed the relative roles of the
Department of Labor and the NRC pursuant to the whistleblower
protection provision of the ERA, 42 U.S.C. § 5851. The
court wrote:
An employee who claims retaliation under [42 U.S.C.
§ 5851(a)(1)(D)] must file a complaint with the DOL,
which may then investigate the allegations and make a
determination. See 42 U.S.C. § 5851(b). Congress
logically gave the power to resolve § 5851 retaliation
claims to the DOL, as those claims are within the DOL's
particular area of expertise. See English v. General
Elec. Co., 496 U.S. 72, 83 n.6, 110 L. Ed. 2d 65, 110 S.
Ct. 2270 (1990) ("The enforcement and implementation of
[§ 5851] was entrusted by Congress not to the NRC--the
body primarily responsible for nuclear safety
regulation--but to the Department of Labor.") (emphasis
added); Norman v. Niagara Mohawk Power Corp., 873
F.2d 634, 637 (2d Cir. 1989).
It bears emphasis, however, that the NRC is not trying
to adjudicate [the Complainant's] individual retaliation
claim; [the Complainant] himself has already filed a claim
with the DOL and has received a favorable decision. Instead,
the NRC is attempting to investigate Respondents' general
employment practices to determine whether those practices
are having a chilling effect on would-be whistleblowers.
That aim is quite distinct from the aim of the DOL
investigation:
"The [NRC's] investigatory powers and those of
the [DOL] under [§ 5851] neither serve the same
purpose nor are invoked in the same manner. They are,
rather, complementary, not duplicative . . . Under
[§ 5851] the [DOL] apparently lacks two remedial
powers--which the [NRC] possesses--. . . the right to
take important action against the employer, and the . .
. authority to do so immediately . . . . The [DOL] may
order only reinstatement and back pay--not correction
of the dangerous practices themselves."
Union Electric, 9 N.R.C. at 138; cf. 42
U.S.C. § 5851(j)(2) (a DOL finding that a retaliation
claim has no merit "shall not be considered by the
[NRC] in its determination of whether a substantial safety
hazard exists").
Construction Products Research, Inc., 1996 U.S.
App. LEXIS 202 at *19-21.
I.A.2. Overview; Applicable Statutes; Energy
Reorganization Act
While the Energy Reorganization Act of 1974, section 210, as
amended, 42 U.S.C. § 5851, bears some relationship to the
field of nuclear safety, its paramount purpose is the protection
of employees. In this regard, it is noted that Congress
entrusted enforcement and implementation of section 210 to the
Department of Labor, not the Nuclear Regulatory Commission.
English v. General Electric Co., __ U.S. __, 110
L.Ed.2d 65, 110 S.Ct. 2270 (1990).
I.A.2. Memorandum of understanding between
NRC and DOL
Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505
(10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L.Ed.2d
724, 106 S. Ct. 3311 (1986).
The Court of Appeals addressed the possibility that complaints
concerning employment discrimination could be intertwined with
matters specifically concerning substantive questions of nuclear
safety. For that reason it declared that jurisdiction over
employment matters resides in the Secretary of Labor and the NRC
is not free to accept jurisdiction concurrently or in its
discretion. However, to safeguard the rights of all parties
involved in such an employment proceeding, a memorandum of
understanding was signed between the Department of Labor (DOL)
and the Nuclear Regulatory Commission (NRC) concerning employee
protection. See 47 Fed. Reg. 54585 (1982). This memo
recognizes that each agency agrees to exchange information
concerning any particular allegation. DOL is to investigate and
conduct hearings on employee complaints and can order a violator
to abate the violation. DOL is to notify the NRC of any
complaint filed with DOL alleging discrimination under the ERA
and of any hearings on a complaint. The NRC does not have direct
authority to provide the employee with a remedy but the NRC may
provide technical assistance to the Secretary pursuant to the
memorandum.
The CAA seeks to prevent and control air pollution by regulating
emissions into the atmosphere.
A purpose of the CAA air quality and emission
limitations is "to protect and enhance the quality of
the Nation's air resources so as to promote the public
health and welfare and the productive capacity of its
population." 42 U.S.C. § 7401(b)(1) (1988).
CAA regulations establish ambient
Ambient air is "that portion of the atmosphere,
external to buildings, to which the general public has
access." 40 C.F.R. § 50.1(e) (1991).
air quality standards for sulfur oxides, particulate matter,
carbon monoxide, ozone, nitrogen dioxide, and lead. 40 C.F.R.
Part 50 (1991). Hazardous air pollutants, including asbestos,
also are regulated. 40 C.F.R. part 61 (1991).
Scerbo v. Consolidated Edison Co. of New York,
Inc., 89-CAA-2 (Sec'y Nov. 13, 1992).
[Nuclear & Environmental Digest I B 1]
PURPOSES OF CAA AND TSCA
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), one member of the ARB reviewed the language of the CAA and the TSCA, and examined the
relevant legislative history of the CAA and the TSCA, to provide guidance to the ALJ on remand
as to what health and safety complaints may touch on concern for the environment and public
health and safety that are the focus of these acts. The member noted that the CAA states that its
purpose is "to protect and enhance the quality of the Nation's air resources so as to promote
the public health and welfare and the productive capacity of its population." 42 U.S.C.
§7401(b)(1) (1988), while the TSCA states that its primary purpose is to assure that
technological innovation and commerce in hazardous "chemical substances and mixtures
do not present an unreasonable risk of injury to health or the environment." 15 U.S.C.
§2601(b)(3) (1988). The member wrote that "[t]o that end, the TSCA authorizes not
only the control of chemical substances but also authorizes the development of data to provide a
basis for evaluating the hazards posed by particular chemicals. The chemical risk assessments
that are developed under the TSCA are also relied on by the EPA in determining the controls to
be set on specific chemicals under the CAA. See 53 Fed. Reg. 51698, 51707 (1998)
(EPA, 40 C.F.R. Part 704, final rule)." Slip op. at 18. For additional detail, see the slip op.
at 18-23.
See also the Melendez casenote under XII D 1 B as to why TSCA record
keeping requirements may implicate protected activity where a complainant is asking question
about his or her personal exposure and health concerns.
[Nuclear & Environmental Digest I B 1]
WHISTLEBLOWER PROVISIONS ARE NOT INTENDED TO SHIELD EMPLOYEES
FROM THE CONSEQUENCES OF THEIR OWN MISCONDUCT OR FAILURES
In Trimmer v. U.S. Dept. of
Labor, No. 97-9544 (10th Cir. Apr. 6, 1999) (case
below 93-CAA-9 and 93-ERA-5), the court in holding that Complainant could not use his
whistleblower status to avoid the consequences of his inaction in seeking gainful alternate
employment at Respondent's laboratory observed:
Whistleblower provisions "are intended to promote a working
environment in which employees are relatively free from the debilitating threat of
employment reprisals for publicly asserting company violations of statutes protecting the
environment." Passaic Valley Sewerage Comm'rs v. Department of Labor,
992 F.2d 474, 478 (3d Cir. 1993). They are not, however, intended to be used by
employees to shield themselves from the consequences of their own misconduct or
failures. See Kahn v. Secretary of Labor, 64 F.3d 271, 279 (7th Cir. 1995)
(rejecting "[plaintiff's] attempt to hide behind his protected activity as a means to
evade termination for non-discriminatory reasons").
"'[W]histleblower' provisions [such as those covered under
29 C.F.R. Part 24] are intended to promote a working environment
in which employees are relatively free from the debilitating
threat of employment reprisals for publicly asserting company
violations of statutes protecting the environment, such as the
Clean Air Act and nuclear safety statutes." Passaic
Valley Sewerage Commissioners v. United States Dept. of
Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at
1993 U.S. App. LEXIS 7906).
I B 2 Whistleblower protection is not from unreasonable
or arbitrary actions; only actions taken in
retaliation for protected activity
The ERA whistleblower provision does not protect workers from
unreasonable or arbitrary actions on the part of an employer --
rather, it only protects workers from actions taken in
retaliation for engaging in activities protected by the ERA.
Collins v. Florida Power Corp., 91-ERA-47 and 49
(Sec'y May 15, 1995).
I.B.2. Purpose of employee protection
provisions
"'[W]histleblower' provisions [such as those covered under
29 C.F.R. Part 24] are intended to promote a working environment
in which employees are relatively free from the debilitating
threat of employment reprisals for publicly asserting company
violations of statutes protecting the environment, such as the
Clean Air Act and nuclear safety statutes." Passaic
Valley Sewerage Commissioners v. United States Dept. of
Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at
1993 U.S. App. LEXIS 7906).
Mackowiak v. University Nuclear Sys., Inc., 735
F.2d 1159 (9th Cir. 1984).
The whistle blower provision in the Energy Reorganization Act is
modeled on, and serves an identical purpose to, the provision in
the Mine Health and Safety Act. See S.Rep. No. 95-848,
95th Cong., 2d Sess. at 29, 1978 U.S.Code Cong. & Ad. News at
7303. These similar provisions share a broad, remedial purpose
of protecting workers from retaliation based on their concerns
for safety and quality.
Whistle blowing is not directly concerned with safety standards,
only the deviation from or the flouting of them. Norris v.
Lumbermen's Mut. Casualty Co., 881 F2d 1144 (1st Cir.
1989).
I.B.2.b. Overview; Applicable Statutes; Energy
Reorganization Act
While the Energy Reorganization Act of 1974, section 210, as
amended, 42 U.S.C. § 5851, bears some relationship to the
field of nuclear safety, its paramount purpose is the protection
of employees. English v. General Electric Co., __
U.S. __, 110 L.Ed.2d 65, 110 S.Ct. 2270 (1990).
Rose v. Secretary of the Dept. of Labor, 800 F.2d
563 (6th Cir. 1986), appeal after remand Rose v. Dole, 945
F.2d 1331 (6th Cir. 1991).
Petitioner informed the Nuclear Regulatory Commission (NRC)
investigators that when some equipment malfunctioned and a small
amount of nuclear material escaped, an alarm had not sounded
because it had been improperly installed. Petitioner's
employment was terminated the day after Nuclear Fuel Services,
the Employer, received notice of a penalty imposed by the NRC.
(Concurring opinion) The complicated statutory and regulatory
scheme enacted by Congress and Nuclear Regulatory Commission was
designed to encourage employees to report unsafe practices in one
of the most dangerous technologies mankind has invented but
without the fear of retribution. Substantial employee
involvement in the regulatory process was envisioned. Citing 47
Fed. Reg. 30453 (1982), the concurring opinion explained that the
NRC cannot effectively fulfill its mandate without complete
factual information concerning the regulated activities of its
licensees of which employees are an important source.
[N/E Digest I B 3]
CONGRESSIONAL PURPOSE; TO PROTECT NUCLEAR INDUSTRY WORKERS
FROM FEAR OF RETALIATION FOR SPEAKING OUT ABOUT POSSIBLE HAZARDS
In Stone & Webster Engineering Corp. v.
Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2,
1997)(case below 93-ERA-44), the Eleventh Circuit discussed the purpose of the employee
protection provision of the ERA in the context of a case arising out of a nuclear power plant that
had a history of reactor fires. The court wrote:
Among the people best positioned to prevent fires are the workers who
tend to nuclear plants. But if fear of retaliation kept workers from speaking out about
possible hazards, nuclear safety would be jeopardized. To protect whistleblowers,
Congress forbade employers from retaliating against employees who act in prescribed
ways to ensure safety. 42 U.S.C. § 5851.
I.B.3.a. Purpose of statutes
The federal "whistleblower" statutes promote
enforcement of environmental laws by protecting employees who aid
the government enforcement agency. Willy v. Coastal
Corp., 855 F.2d 1160 (5th Cir. 1988).