Doe, Jane v. Oberweis Dairy

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-3680, 05-1998, 05-3770
JANE DOE,
Plaintiff-Appellant,
and
JANE ROE and JANE ROE 2,
Proposed-Intervenors-Appellants,
v.
OBERWEIS DAIRY,
Defendant-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 4774—John W. Darrah, Judge.
____________
ARGUED MAY 30, 2006—DECIDED JULY 28, 2006
____________
Before POSNER, KANNE, and WOOD, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, who is being permit-
ted to litigate her case under a pseudonym, was a high-
school student hired as a part-time ice cream “scooper” at
the defendant’s store in Bartlett, Illinois. She sued under
Title VII of the Civil Rights Act of 1964, with supplemental
2 Nos. 04-3680, 05-1998, 05-3770
claims for battery, intentional infliction of emotional
distress, and related common law wrongs, claiming that
a shift supervisor at the store, Matt Nayman, had harassed
her sexually, culminating in sexual intercourse, for which he
was prosecuted, convicted, and imprisoned. For Doe was
only 16 years old when they had sex, and the age of consent
in Illinois is generally 17, 720 ILCS 5/12-16(d), rising to 18
if the accused holds “a position of trust, authority, or
supervision in relation to the victim.” 720 ILCS 5/12-16(f).
We need not decide whether the Illinois courts would think
Nayman held such a position in relation to the plaintiff.
The district judge rejected the Title VII claim on the basis
of the defendant’s motion for summary judgment. He
reasoned that the plaintiff had failed to exhaust her admin-
istrative remedies and that in any event her claim had no
merit because her relationship with Nayman, including
their one incident of sexual intercourse, had been voluntary
and had occurred outside the workplace and because
Nayman’s conduct within it had not been, the judge
thought, sufficiently offensive to amount to sexual harass-
ment. Having dismissed the plaintiff’s federal claim before
trial, the district judge then, as is routine, relinquished
jurisdiction of the supplemental claims to the state courts.
The plaintiff’s main appeal challenges the judgment; in a
separate appeal she challenges the district court’s award of
costs to the defendant. The appeal by the plaintiff’s mother
and younger sister, the Roe appellants, is from the district
judge’s denial of their motion to intervene in the litigation.
They sought intervention to contest the judge’s grant of the
defendant’s motion for access to the records of the plaintiff’s
psychiatric therapy sessions, at some of which the mother
and the sister were present. The plaintiff also objects. The
records were not turned over; instead, when the plaintiff’s
Nos. 04-3680, 05-1998, 05-3770 3
objection was rejected, she trimmed her evidence of emo-
tional distress.
The Administrative Procedure Act requires plaintiffs
to exhaust their administrative remedies before seeking
judicial review of agency action. 5 U.S.C. § 704; Darby
v. Cisneros, 509 U.S. 137, 143-47 (1993); Glisson v. U.S. Forest
Service, 55 F.3d 1325, 1326 (7th Cir. 1995). Doe’s suit does not
seek judicial review of the EEOC’s handling of her discrimi-
nation charge, or of any other agency action, and so the
APA is inapplicable. Riley v. American Family Mutual Ins. Co.,
881 F.2d 368, 373 (7th Cir. 1989); Flowers v. Laborers Int’l
Union, 431 F.2d 205, 208 (7th Cir. 1970); see also Roach v.
Morse, 440 F.3d 53, 58 (2d Cir. 2006); Idaho Watersheds Project
v. Hahn, 307 F.3d 815, 824-25 (9th Cir. 2002); Cleghorn v.
Herrington, 813 F.2d 992, 994-95 (9th Cir. 1987). Title VII has
its own requirements as to what claimants must do before
they can sue, but at least so far as the statutory text is
concerned, those requirements are limited to (1) filing a
charge with the Equal Employment Opportunity Commis-
sion within 180 days after the date of the complained-of
employment action, in states that do not have an equal
employment opportunity agency, and within 300 days in
states like Illinois that do, in which event the complainant
must file his complaint with that agency at least 60 days
before filing with the EEOC, and (2) waiting to sue until
receiving notification (the “right to sue” letter) from the
Commission that the Commission does not intend to sue.
The Commission must issue the letter within 180 days after
receiving the charge. 42 U.S.C. §§ 2000e-5(c), (e), (f)(1);
Martinez v. United Automobile, Aerospace & Agricultural
Implement Workers, 772 F.2d 348, 350 (7th Cir. 1985).
The purpose of these requirements is both to give the
Commission a chance to investigate the charge and decide
whether to sue, and to encourage the complainant and the
4 Nos. 04-3680, 05-1998, 05-3770
employer, with or without the state agency’s or EEOC’s
assistance, to resolve their dispute informally. Horton v.
Jackson County Board of County Commissioners, 343 F.3d 897,
899-900 (7th Cir. 2003); Chacko v. Patuxent Institution, 429
F.3d 505, 510 (4th Cir. 2005); Foster v. Ruhrpumpen, Inc., 365
F.3d 1191, 1195 (10th Cir. 2004). Many disputes are resolved
at this stage, reducing the burden on the courts of enforcing
Title VII; last year the Commission received 55,976 Title VII
charges, of which 10,286, or almost 20 percent, were re-
solved without any litigation (computed from the Commis-
sion’s website, http://www.eeoc.gov/stats/vii. html,
visited June 7, 2006). In addition, the charge filed with the
Commission limits the claims that the complainant may
raise in litigation.
If the dispute is not settled at the administrative stage, the
complaining party has a right to sue (unless the Commis-
sion decides to sue, Kremer v. Chemical Construction Corp.,
456 U.S. 461, 469-70 (1982); Chandler v. Roudebush, 425 U.S.
840, 844-45 (1976); EEOC v. Frank’s Nursery & Crafts, Inc., 177
F.3d 448, 456 (6th Cir. 1999)) even if the Commission has
investigated and decided that the claim is groundless.
Alexander v. Gardner-Denver Co., 415 U.S. 36, 44-45 (1974);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99
(1973); Solimino v. Astoria Federal Savings & Loan Ass’n, 901
F.2d 1148, 1151-52 (2d Cir. 1990). The Commission’s exercise
of the administrative equivalent of prosecutorial discretion
does not bar a private suit.
To facilitate its investigation during the 180-day period,
the Commission requires the complainant to cooperate,
including by participating in a factfinding conference
with Commission staff. 29 C.F.R § 1601.15(c). If the com-
plainant fails to cooperate and the failure prevents the
Commission from resolving the charge, the Commission can
Nos. 04-3680, 05-1998, 05-3770 5
dismiss it. § 1601.18(b). Although neither the regulations nor
Title VII makes cooperation a condition of the complainant’s
being able to sue, the Tenth Circuit has decided that failure
to cooperate in good faith is a bar to suit. Shikles v.
Sprint/United Mgmt. Co., 426 F.3d 1304 (10th Cir. 2005).
(Shikles was a suit under the Age Discrimination
in Employment Act, but most of the court’s discussion is
of Title VII.) The Commission has expressed its disagree-
ment with the Tenth Circuit’s position in a series of amicus
curiae briefs, one filed with us in this case. Because Jane Doe
declined to be interviewed by Commission staff, the Com-
mission dismissed her administrative complaint for failure
to cooperate. But it still issued her a “right to sue” letter,
and the defendant does not dispute that the Commission
was required to do so.
Shikles is inconsistent with our decision in Zugay v.
Progressive Care, S.C., 180 F.3d 901, 903 (7th Cir. 1999).
Remember that in states that have an equal employment
opportunity agency, the Title VII complainant must file
a charge with that agency and cannot proceed further for 60
days. Zugay duly filed, and the agency scheduled
a factfinding conference. But before the conference was held,
the 60 days expired and Zugay jumped to the next stage
(filing with the EEOC). The defendant argued that Zugay
had failed to exhaust her administrative remedies. We
disagreed. The only statutory requirement was that the
claimant file with the state agency and wait 60 days. The
fact that had she been more patient the case might have
been resolved on the basis of the factfinding conference that
the agency had scheduled did not prevent her from aban-
doning the process on pain of not being allowed to sue. She
did not cooperate, yet could sue anyway.
In Shikles, it is true, as in this case, the complainant
stopped cooperating during rather than after the stat-
6 Nos. 04-3680, 05-1998, 05-3770
utory period. But the point of Zugay, which is equally
apposite to this case and Shikles, is that the statute does not
impose a duty of cooperation, whether during or after the
statutory period. The opinion in Zugay points out that the
complainant had in fact cooperated with the agency for
more than 60 days, 180 F.3d at 903, but adds not only that
all she was required to do was to “allow . . . the agency 60
days to act,” but also that the state could if it wanted waive
the 60-day requirement. Id. In other words, it could say
forget about cooperation. That in effect is what the EEOC
has done, and not just in its amicus curiae briefs. Walker v.
United Parcel Service, Inc., 240 F.3d 1268, 1274-77 (10th Cir.
2001) upheld an EEOC regulation that authorizes the Com-
mission to allow the complainant to sue before the end of the
180-day period that the statute gives the Commission to
decide whether to sue on its own. If suit can thus be brought
before the administrative exhaustion period has expired,
that period can hardly be jurisdictional, as the Tenth Circuit
in Shikles thought.
We acknowledge that without a court-fashioned bar
to suits by noncooperators, complainants under Title VII, as
well as complainants under similar employment-discrimina-
tion statutes, such as the Age Discrimination
in Employment Act and the Americans with Disabilities Act,
Shikles v. Sprint/United Mgmt. Co., supra; McBridge v. CITGO
Petroleum Corp., 281 F.3d 1099 (10th Cir. 2002), will have less
incentive to cooperate with the Commission, and as a result
fewer disputes will be resolved at the administrative stage.
But if the problem were a significant one, we would expect
some evidence of this to have surfaced in the 42 years since
Title VII was promulgated, and none has; we would also
expect the EEOC to have supported rather than opposed the
Tenth Circuit’s position.
Nos. 04-3680, 05-1998, 05-3770 7
There is, as we said, no basis in the language of Title VII
for that position. The Tenth Circuit acknowledged the
Supreme Court’s “admonition that no requirements beyond
those in the statute should be imposed,” Shikles
v. Sprint/United Mgmt. Co., supra, 426 F.3d at 1315; see
Mohasco Corp. v. Silver, 447 U.S. 807, 816 n. 19 (1980);
McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 798-99;
Eichman v. Linden & Sons, Inc., 752 F.2d 1246, 1249 (7th Cir.
1985)—but it imposed them anyway. So the Tenth Circuit’s
gloss on Title VII is confessedly adventurous, and this
will distress originalists. It is also in severe tension with
the Supreme Court’s recent observation, concerning the
“exhaustion” provisions in both Title VII and the Age
Discrimination in Employment Act, that “neither of these
provisions makes reference to the concept of exhaustion,
and neither is in any sense an exhaustion provision.”
Woodford v. Ngo, No. 05-416, 2006 WL 1698937, at *9 (S. Ct.
June 22, 2006). Title VII imposes procedural requirements as
a precondition to bringing a suit in federal court that is an
original proceeding rather than one to review agency action.
Doe satisfied all those requirements. Title VII does not
incorporate anything like the full apparatus of exhaustion,
an apparatus designed as we have noted for cases in which
judicial review of an adjudication or a rule is sought. We
shall continue for convenience to refer to Title VII’s
“exhaustion” requirements, but they must not be confused
with the requirements for APA-type exhaustion.
The decisive objection to the Tenth Circuit’s position is
that if widely adopted it would protract and complicate
Title VII litigation, and with little or no offsetting benefit if
we are right in thinking that the problem of complainants
who by failing to cooperate with the Commission thwart the
conciliation process and as a result thrust additional cases
on the federal courts is a slight one. In Shikles the complain-
8 Nos. 04-3680, 05-1998, 05-3770
ant’s lack of cooperation could be established with unusual
ease: he refused to be interviewed, failed to provide the
EEOC with the documents that it requested, failed to
explain why he could not provide them, and his lawyer
failed to respond to several of the EEOC’s efforts to reach
him. In the next case, however, the complainant might sit
for the interview but refuse to answer questions. In the case
after that he would answer questions but do so cryptically.
And in a subsequent case he would answer questions fully
but fail to bargain in good faith over the employer’s offer of
a settlement.
For the “cooperation” theory of exhaustion requires not
merely pro forma compliance with the Commission’s
regulations but, as Shikles put it, a “good faith effort at
cooperation.” 426 F.3d at 1317. We know from cases
under the National Labor Relations Act, which requires
unions and employers to bargain in good faith, 29 U.S.C.
§ 158(d); Litton Financial Printing Division v. NLRB, 501
U.S. 190, 198-99 (1991), how difficult it is to enforce such
a duty, ConAgra, Inc. v. NLRB, 117 F.3d 1435, 1447 (D.C.
Cir. 1997) (concurring opinion), because it jostles uneasily
with the right (see 29 U.S.C. § 158(d); H. K. Porter Co. v.
NLRB, 397 U.S. 99, 106-08 (1970)) of each party to a labor
negotiation to refuse an offer by the other even if a neutral
observer would think it a fair, even a generous, offer. Huck
Mfg. Co. v. NLRB, 693 F.2d 1176, 1187 (5th Cir. 1982); Eastern
Maine Medical Center v. NLRB, 658 F.2d 1, 10 (1st Cir. 1981);
NLRB v. Milgo Industrial, Inc., 567 F.2d 540, 542-43 (2d Cir.
1977) (Friendly, J.); see also PSI Energy, Inc. v. Exxon Coal
USA, Inc., 17 F.3d 969, 974 (7th Cir. 1994). To allow employ-
ers to inject such an issue by way of defense in every Title
VII case would cast a pall over litigation under that statute.
The fact that in Shikles the refusal to cooperate was
palpable may have concealed the lurking difficulties in the
Nos. 04-3680, 05-1998, 05-3770 9
rule that it adopted. In our case, the veil is pulled back
slightly. The plaintiff was only 17 when the charge was filed
with the EEOC, and because of her youth it was filed not by
her but by her lawyer. The lawyer supplied
the Commission’s staff with information that enabled
the staff to interview ten witnesses to the alleged harass-
ment. When the Commission requested an interview
with the plaintiff herself, however, her lawyer turned down
the request on the ground that both he and the plaintiff’s
psychotherapist believed the interview would upset the
plaintiff. The lawyer offered to furnish the Commission with
answers to any questions that the staff would have wanted
to ask the plaintiff in an interview.
Was this a failure by the plaintiff to “cooperate”? In a
literal sense, yes, as the Commission ruled in dismissing the
administrative complaint on that basis. Evidently the
Commission didn’t think that without interviewing the
plaintiff it could determine whether to bring suit against the
employer on her behalf. It brings very few cases and so
wants to be very sure of the merits before proceeding. But
was she acting in bad faith in failing to cooperate to the
extent sought by the Commission? For all we know, even
the Tenth Circuit would say no; for she had a reason not
to cooperate. Nor is there any indication that by failing to sit
for an interview she made it more difficult to resolve her
dispute with the defendant before bringing suit. The
defendant would not have had access to a transcript of the
interview unless and until she sued.
Failure to exhaust administrative remedies can often be
excused. E.g., Shalala v. Illinois Council on Long Term Care,
Inc., 529 U.S. 1, 13 (2000); McCarthy v. Madigan, 503 U.S. 140,
146-49 (1992); Ruttenberg v. United States Life Ins. Co., 413
F.3d 652, 662 (7th Cir. 2005); Woodall v. Federal Bureau of
10 Nos. 04-3680, 05-1998, 05-3770
Prisons, 432 F.3d 235, 239 n. 2 (3d Cir. 2005); United States v.
Calderon, 391 F.3d 370, 375 (2d Cir. 2004). And especially
when creating an exhaustion requirement, a court can build
in exceptions. Watts v. BellSouth Telcommunications, Inc., 316
F.3d 1203, 1206-07 (11th Cir. 2003). “To the extent that
[exhaustion of administrative remedies] is a doctrine of
federal common law rather than the inflexible command of
a statute, it is to be applied with due regard for its underly-
ing purpose and for considerations that may in particular
cases counsel for a waiver.” Glisson v. United States Forest
Service, supra, 55 F.3d at 1327; see also Paese v. Hartford Life
Accident Ins. Co., 449 F.3d 435, 445-46 (2d Cir. 2006). “Only
when Congress states in clear, unequivocal terms that the
judiciary is barred from hearing an action until the adminis-
trative agency has come to a decision . . . has the Supreme
Court held that exhaustion is a jurisdictional prerequisite.”
I.A.M. National Pension Fund Benefit Plan C v. Stockton Tri
Industries, 727 F.2d 1204, 1208 (D.C. Cir. 1984).
We are quite aware that exhaustion of administrative
remedies is required when the Title VII plaintiff is a fed-
eral employee. E.g., Hill v. Potter, 352 F.3d 1142, 1145-46 (7th
Cir. 2003); Greenlaw v. Garrett, 59 F.3d 994, 996-98 (9th Cir.
1995); Khader v. Aspin, 1 F.3d 968, 971 (10th Cir. 1993). But
the statutory framework is different. In private-sector cases
the EEOC must bring a lawsuit if it wants to obtain relief for
a victim of discrimination. But in federal-employee cases it
can provide that relief through its own administrative
process. 42 U.S.C. § 2000e-16(b). That is a situation in which
exhaustion is invariably required, e.g., Reiter v. Cooper, 507
U.S. 258, 269 (1993); McCarthy v. Madigan, 503 U.S. 140, 144-
48 (1992); United Tribe of Shawnee Indians v. United States, 253
F.3d 543, 551 (10th Cir. 2001)—indeed by the Administrative
Procedure Act, as we saw earlier. For otherwise the claimant
would have an arbitrary choice of forums, and the courts
Nos. 04-3680, 05-1998, 05-3770 11
would be burdened with litigation that could have been
conducted, perhaps more expeditiously and expertly, before
the administrative body. That is not a course open to the
private-sector Title VII claimant, because the EEOC cannot
enforce the statute administratively on behalf of such a
claimant, cf. Sayaxing v. INS, 179 F.3d 515, 522-23 (7th Cir.
1999), but only by filing a suit.
In addition, federal employees must file their discrim-
ination complaints directly with the agency that employs
them, rather than with the EEOC, 42 U.S.C. § 2000e-16(c);
Brown v. GSA, 425 U.S. 820, 828-35 (1976), so that judicial
interference with the operation of the federal government
will be minimized. Jasch v. Potter, 302 F.3d 1092, 1096 (9th
Cir. 2002); McRae v. Librarian of Congress, 843 F.2d 1494, 1496
(D.C. Cir. 1988) (per curiam); cf. Robinson v. Dalton, 107 F.3d
1018, 1020-21 (3d Cir. 1997). That aim would be blunted if
the employee could bypass the employer by not cooperating
with him.
We conclude at long last that Jane Doe “exhausted” her
administrative remedies, and so we come to the merits of
her appeal. Construing the evidence as favorably to her as
the record permits, as we must, we assume that Nayman,
the shift supervisor, regularly hit on the girls (most of the
employees were teenage girls) and young women employed
in the ice cream parlor. He would, as one witness explained,
“grope,” “kiss,” “grab butts,” “hug,” and give “tittie
twisters” to these employees, including the plaintiff. These
things he did in the store, but he would also invite the girls
to his apartment. He had sexual intercourse in the apart-
ment with two of them, one of them a minor, before it was
the plaintiff’s turn. He was 25 when he had intercourse with
her.
12 Nos. 04-3680, 05-1998, 05-3770
The district judge ruled that the plaintiff was not ha-
rassed, because she welcomed Nayman’s advances. See
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). In
so ruling, however, the judge stepped out of the proper
role of a judge asked to decide a motion for summary
judgment and made findings on contested factual issues
relating to her dealings with Nayman, as when the judge
said that “once, Nayman gave Plaintiff a hug and kiss in an
effort to make Plaintiff happy,” or that “Nayman also
‘playfully’ hit Plaintiff on the behind with a rag on one
occasion.”
What is uncontested is that Nayman did not commit
forcible rape. But he committed statutory rape, that is,
intercourse with an underage person, which is made a crime
because of a belief that below a certain age a person cannot
(more realistically, is unlikely to be able to) make
a responsible decision about whether to have sex. Valencia
v. Gonzales, 439 F.3d 1046, 1053 (9th Cir. 2006); Michelle
Oberman, “Regulating Consensual Sex with Minors:
Defining a Role for Statutory Rape,” 48 Buff. L. Rev. 703,
710 (2000). In Illinois as elsewhere the crime is considered
more serious the greater the disparity in ages between the
parties. The theory is that a young girl (or boy) is likely
to have particular difficulty resisting the blandishments of
a much older man. 720 ILCS 5/12-15(c), 16(d). Nayman was
nine years older than Jane Doe when they had sex.
“The age of consent fixed by a state represents a legisla-
tive judgment about the maturity of girls in matters of sex.”
Beul v. ASSE Int’l, Inc., 233 F.3d 441, 450 (7th Cir. 2000). To
avoid undermining valid state policy by reclassifying
sex that the state deems nonconsensual as consensual,
to simplify employment-discrimination litigation, and to
avoid intractable inquiries into maturity that legislatures
invariably pretermit by basing entitlements to public
Nos. 04-3680, 05-1998, 05-3770 13
benefits (right to vote, right to drive, right to drink, right
to own a gun, etc.) on specified ages rather than on a
standard of “maturity,” federal courts, rather than deciding
whether a particular Title VII minor plaintiff was capable of
“welcoming” the sexual advances of an older man, should
defer to the judgment of average maturity in sexual matters
that is reflected in the age of consent in the state in which
the plaintiff is employed. That age of consent should thus be
the rule of decision in Title VII cases. This conclusion is
consistent with cases in related contexts, Mary M. v. North
Lawrence Community School Corp., 131 F.3d 1220, 1226 (7th
Cir. 1997); Doe by Doe v. Greenville Hospital System, 448 S.E.2d
564, 566 (S.C. App. 1994); with the provision of the Restate-
ment of Torts that “if conduct is made criminal in order to
protect a certain class of persons irrespective of their
consent, the consent of members of that class to the conduct
is not effective to bar a tort action,” Restatement (Second) of
Torts § 892C (1979); and with the common practice of using
state law to fill gaps in federal law. E.g., Kamen v. Kemper
Financial Services, Inc., 500 U.S. 90, 108-09 (1991); United
States v. Kimbell Foods, Inc, 440 U.S. 715, 727-28 (1979).
We realize that as a consequence of our approach the
protection that Title VII gives teenage employees will not be
uniform throughout the country, since the age of consent is
different in different states, though within a fairly narrow
band. Uniformity would require federal courts either to
specify an age at which American teenagers shall be deemed
capable of consenting to sexual advances in the workplace
or to determine the individual plaintiff’s maturity in each
case. Neither of these alternatives is satisfactory; both in
their different ways are arbitrary. Deferring to each state’s
determination of the age of consent not only makes the
litigation of cases such as this much simpler and no more
arbitrary; it also reflects the differences among the states in
14 Nos. 04-3680, 05-1998, 05-3770
judgments about the maturity of teenagers in sexual mat-
ters.
For completeness we add that although consent to sex-
ual relations with a coworker or supervisor is not a de-
fense in a Title VII suit for sexual harassment brought by
a plaintiff who was underage when the conduct alleged
to constitute harassment occurred, this does not mean
that the conduct of the plaintiff can never be used to re-
duce the defendant’s damages in such a case. In a negli-
gence case brought by an exchange student against the
company that had placed her with a couple and the hus-
band raped her, we said that “it would have been error to
instruct the jury that because Kristin was below the age of
consent her comparative fault must be reckoned at zero.
That would have given too much force to the crim-
inal statute in this civil case, for the statute cannot be
considered a legislative judgment that minors are utterly
incapable of avoiding becoming ensnared in sexual relation-
ships.” Beul v. ASSE Int’l, Inc., supra, 233 F.3d at 450-51; see
also LK v. Reed, 631 So. 2d 604, 607-08 (La. App. 1994);
Morris v. Yogi Bear’s Jellystone Park Camp Resort, 539 So. 2d
70, 76-78 (La. App. 1989); Robinson v. Roberts, 423 S.E.2d 17,
18 (Ga. App. 1992); contra, Hutchison v. Luddy, 763 A.2d 826,
848-49 (Pa. Super. 2000), vacated on other grounds, 870 A.2d
766 (Pa. 2005). Beul was a common law negligence case,
however; this is a Title VII case and we cannot find a case
under Title VII in which comparative fault was recognized
as a complete or partial defense to liability.
Title VII does require mitigation of damages with respect
to back pay, because it provides that “interim earnings
or amounts earnable with reasonable diligence by the
person or persons discriminated against shall operate to
reduce the back pay otherwise allowable.” 42 U.S.C.
Nos. 04-3680, 05-1998, 05-3770 15
§ 2000e-5(g)(1); see Ford Motor Co. v. EEOC, 458 U.S. 219,
231-32 (1982); EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569,
1580-81 (7th Cir. 1997). But failure to mitigate is distinct
from comparative fault. The duty to mitigate arises after the
plaintiff has been injured, the duty of care before. Robinson
v. Southeastern Pennsylvania Transportation Authority, 982
F.2d 892, 898-99 (3d Cir. 1993), rejected a defense of compar-
ative fault in the context of back pay—understandably, as
comparative fault is a common law defense and back pay is
an equitable remedy, even after the amendment to Title VII
that added a damages remedy to the statute. Pals v. Schepel
Buick & GMC Truck, Inc., 220 F.3d 495, 500 (7th Cir. 2000);
Lutz v. Glendale Union High School, District No. 205, 403 F.3d
1061, 1067-69 (9th Cir. 2005).
In adding that remedy Congress did not indicate whether
or what defenses based on victim fault might be available to
a defendant; and there is no pertinent legislative history.
Congress may have felt that to recognize such a defense in
a discrimination case would be “blaming the victim” with
a vengeance, for it would amount to saying that a person
might be to blame for being discriminated against on the
basis of his race or sex or some other forbidden criterion. Of
course such a victim may have contributed to the adverse
employment action of which he complains; he may have
been an incompetent employee whom his employer would
have fired wholly apart from the employee’s membership in
a protected group, and if so he could not get damages. But
it would be odd and even disasteful to blame him for the
invidious discrimination itself.
This case, however, is unusual because the plaintiff
was an active participant in, rather than a passive victim of,
the principal discriminatory act of which she complains—
the act of sexual intercourse with Nayman. At the damages
16 Nos. 04-3680, 05-1998, 05-3770
stage of this proceeding, should it get that far, the defen-
dant—who is not Nayman, but Nayman’s employer—
should be permitted to put Nayman’s conduct in perspec-
tive. If Doe was sneaking around behind her mother’s— and
her employer’s—back and thus facilitating Nayman’s
behavior, the employer may be able to show that the
harm she suffered that was caused by its violation of Title
VII (if such a violation is found on remand), rather than by
Nayman, was minimal.
That would be a straightforward application of the
principle that a plaintiff may recover from a defendant only
those compensatory damages that can fairly be traced to the
defendant’s conduct. “The normal measure of tort damages
is the amount which compensates the plaintiff for all of the
damages proximately caused by the defendant’s negli-
gence,” Hayman v. Wilkerson, 535 A.2d 880, 885 (D.C. 1987);
see also Restatement (Second) of Torts § 917, comment c (1979)
(“the rules that determine the causal relation necessary to
liability are as fully applicable to establish the extent of
liability as to establish its existence”)—that is, caused by the
defendant’s failure to exercise the degree of care that the law
requires. What that degree of care is in a case such as the
present one is taken up later in this opinion. Though
inquiries into the maturity of individual minors are, as we
said earlier, bound to be fraught with uncertainty, a jury
should be able to sort out the difference between an em-
ployer’s causal contribution to the statutory rape by its
employee of a 16-year-old siren (if that turns out to be an
accurate description of Doe) and to similar conduct toward,
say, a 12-year-old.
But in discussing an issue for the damages phase of a
remanded proceeding we have gotten ahead of ourselves, as
we have not yet resolved a crucial issue of liability. That
Nos. 04-3680, 05-1998, 05-3770 17
Doe cannot be taken to have consented to Nayman’s
advances does not establish workplace sexual harassment.
Title VII is limited to employment discrimination, and
therefore sexual harassment is actionable under the stat-
ute only when it affects the plaintiff’s conditions of employ-
ment. Burlington Northern & Santa Fe Ry. v. White, No. 05-
259, 2006 U.S. LEXIS 4895, at *15-17 (U.S. June 22, 2006);
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986);
McPherson v. City of Waukegan, 379 F.3d 430, 437-38 (7th Cir.
2004).
The sexual act need not be committed in the workplace,
however, to have consequences there. In Meritor, the
“respondent testified that during her probationary period as
a teller-trainee, Taylor treated her in a fatherly way and
made no sexual advances. Shortly thereafter, however, he
invited her out to dinner and, during the course of the meal,
suggested that they go to a motel to have sexual relations.
At first she refused, but out of what she described as fear of
losing her job she eventually agreed.” 477 U.S. at 60; see
Crowley v. L.L. Bean, Inc., 303 F.3d 387, 409-10 (1st Cir. 2002).
But at the very least the harassment must, as in Meritor, be
an episode in a relationship that began and grew in the
workplace. Cf. Whitaker v. Carney, 778 F.2d 216, 221 (5th Cir.
1985). Had Nayman met Doe on the last day of either his or
her employment at the ice cream parlor and later asked her
for a date that eventually culminated in sexual intercourse,
the connection to the workplace would have been too
attenuated to constitute workplace harassment. Cf. Hunter
v. Countryside Association for the Handicapped, Inc., 723 F.
Supp. 1277, 1278 (N.D. Ill. 1989). It would have been no
different from his asking a customer for a date.
But that is not what happened. The relationship began
with flirtatious talk and erotic touching in the workplace
18 Nos. 04-3680, 05-1998, 05-3770
and continued there for nine months before Nayman and
Doe had sex. Nor did it end with their sexual encounter. She
continued working at the ice cream parlor in close proximity
with her harasser—indeed under his supervision—after the
statutory rape, though for less than two weeks. See Fuller v.
City of Oakland, 47 F.3d 1522, 1527-28 (9th Cir. 1995). Because
her consent to have sex with Nayman was, as a matter of
law, ineffectual, this is a case of a worker subjected to
nonconsensual sex by a supervisor or at least quasi-supervi-
sor (see below) during, as well as arising from, the employ-
ment relation. That is a sufficiently strong case of workplace
sexual harassment to withstand summary judgment.
Whether it is harassment by the employer is a separate
question.
We shall turn to that question momentarily but first we
want to make clear that we are not holding that Nayman’s
behavior with Doe and the other underage girls before that
behavior culminated in sexual intercourse was sexual
harassment per se. That was not criminal conduct. Nor are
American teenage girls such blushing violets that sexual
badinage is harassment per se. The criminal laws of the
states recognize the distinction between talk and casual
physical contact on the one hand and sexual intercourse
on the other; and so should federal courts in Title VII cases.
The plaintiff presented evidence that she was disturbed by
the defendant’s attentions in the workplace but did not
feel free to resist them for fear of losing her job (and it was
her first job), but that evidence was contested and so its
significance remains to be determined.
But was the defendant responsible for Nayman’s con-
duct? The general rule, crudely stated however (as we are
about to see), is that if the harasser is a supervisor, the
employer is strictly liable for the harassment, Burlington
Nos. 04-3680, 05-1998, 05-3770 19
Industries, Inc. v. Ellerth, 524 U.S. 742, 760-65 (1998); Hall v.
Bodine Electric Co., 276 F.3d 345, 355 (7th Cir. 2002), while if
he is a coworker the employer is liable only if it failed to
have and enforce a reasonable policy for preventing harass-
ment, or in short only if it was negligent in failing to protect
the plaintiff from predatory coworkers. Cerros v. Steel
Technologies, Inc., 398 F.3d 944, 951-52 (7th Cir. 2005);
Loughman v. Malnati Organization, Inc., 395 F.3d 404, 407 (7th
Cir. 2005).
The paradigmatic supervisor is an employee who has
the authority to fire the plaintiff, e.g., Savino v. C.P. Hall
Co., 199 F.3d 925, 932 n. 7 (7th Cir. 1999), because by giving
him that authority the employer has armed him to intimi-
date the employees whom he supervises. Gawley v. Indiana
University, 276 F.3d 301, 311 (7th Cir. 2001); Lutkewitte v.
Gonzales, 436 F.3d 248, 259-60 (D.C. Cir. 2006) (concurring
opinion). The paradigmatic coworker is a worker of the
same status as the plaintiff. The difficulty of classification in
this case arises from the fact that Nayman, the shift supervi-
sor, was in between the paradigmatic classes. He had
supervisory responsibility in the sense of authority to direct
the work of the scoopers, and he was even authorized to
issue disciplinary write-ups, but he had no authority to fire
them. He was either an elevated coworker or a diminished
supervisor. The defendant’s brief denies that shift supervi-
sors have any disciplinary authority, but this is one of many
factual errors in the brief.
If forced to choose between the two pigeonholes, we
would be inclined to call Nayman a supervisor, consistent
with Gawley v. Indiana University, supra, 276 F.3d at311—though Hall v. Bodine Electric Co., supra, 276 F.3d at 355,
tugs the other way—because he was often the only supervi-
sory employee present in the ice cream parlor. He was thus
20 Nos. 04-3680, 05-1998, 05-3770
in charge, and had he told his boss that one of the scooper
girls was not doing a good job and should be fired, the boss
would probably have taken his word for it rather than
conduct an investigation, since Doe—a part-time teenage
worker—would hardly have been considered a valued
employee.
But there is no compelling need to make a dichotomous
choice. Simplicity is a value in law, as we have stressed, but
it is not the only value. Binary distinctions are not the
only ones that judges and juries are capable of making.
Burlington Industries, Inc. v. Ellerth, supra, 524 U.S. at 760-62,
along with its companion case, Faragher v. City of Boca Raton,
524 U.S. 775, 802-03 (1998), recognizes this in two ways.
They distinguish between supervisors who take or threaten
to take a “tangible employment action” against
a subordinate, such as firing her or denying her a promo-
tion, and supervisors who are merely “aided in accomplish-
ing the tort [i.e., the harassment] by the existence of the
agency relation,” that is, the supervisor’s status as the
employer’s agent. Id. at 801, 807; Pennsylvania State Police
v. Suders, 542 U.S. 129, 143-46 (2004); Burlington Industries,
Inc. v. Ellerth, supra, 524 U.S. at 760-62. And in adopting
the negligence standard to govern the employer’s liability
for coworker harassment, which requires determining
whether “the company was negligent either in discovering
or remedying the harassment.” Hall v. Bodine Electric Co.,
supra, 276 F.3d at 356, the cases implicitly impose on the
employer a higher duty of care to protect its employees
against those employees whom the employer has armed
with authority, even if it is less than the authority that
triggers the employer’s strict liability.
Under either approach, even if not strictly liable for
harassment by a shift supervisor, still the employer must
Nos. 04-3680, 05-1998, 05-3770 21
exercise greater care than is required in a case of routine
harassment by a coworker. How much greater will normally
be a jury question, though of course in extreme questions it
will be answered by the judge. The defendant was not
entitled to summary judgment on the question in this case.
The fact that Nayman was often the only supervisor in the
ice cream parlor and that the workers he was supervising
were for the most part inexperienced teenagers working
part time created a risk of harassment by him that required
his employer to take greater care than if Nayman had been
one of the teenage scoopers. Other shift supervisors were
aware of Nayman’s sexually suggestive behavior with the
teenage scoopers (also that he was an alcoholic) and his
practice of inviting them to his apartment. But either they
did not report this conduct to their managers as they should
have done or the managers took no action because they
believed that activity that occurs outside the workplace is
none of their business even if it originated in the workplace
and had consequences there. No procedures were in force or
utilized for protecting girls like the plaintiff from what
happened to her, even though it should have been clear that
the situation in the store as a result of Nayman’s antics was
explosive.
An employer of teenagers is not in loco parentis, but he acts
at his peril if he fails to warn their parents when he knows
or should know that their children are at substantial risk of
statutory rape by an older, male shift supervisor
in circumstances constituting workplace harassment.
“[S]exual harassment may be a particular problem in the
restaurant industry because restaurants often hire young,
inexperienced workers. High employee turnover contributes
to the problem, presumably because of monitoring difficul-
ties and the need to train new employees continually . . . .
[R]estaurants often try to create an ‘entertainment atmo-
22 Nos. 04-3680, 05-1998, 05-3770
sphere’ that can cloud the rules for appropriate conduct in
the workplace.” Jennifer Ann Drobac, “Sex and the Work-
place: ‘Consenting’ Adolescents and a Conflict of Laws,” 79
Wash. L. Rev. 471, 481 (2004).
In sum, the district judge terminated the case prematurely.
But he was correct to allow the defendant access to the
plaintiff’s psychiatric records. Although there is a
psychotherapist-patient privilege in federal cases, Jaffee
v. Redmon, 518 U.S. 1 (1996), intended like the closely related
doctor-patient privilege to avoid deterring people from
seeking treatment by fear that by doing so they will incur a
disadvantage in litigation, the privilege is not absolute. If a
plaintiff by seeking damages for emotional distress places
his or her psychological state in issue, the defendant is
entitled to discover any records of that state. Schoffstall v.
Henderson, 223 F.3d 818, 823 (8th Cir. 2000); see generally
Beth S. Frank, Note, “Protecting the Privacy of Sexual
Harassment Plaintiffs: The Psychotherapist-Patient Privilege
and Recovery of Emotional Distress Damages under the
Civil Rights Act of 1991,” 79 Wash. U.L.Q. 639, 651-57 (2001).
Rule 35 of the Federal Rules of Civil Procedure would
entitle the defendant to demand that the plaintiff submit to
a psychiatric examination, e.g., S.A. Healy Co. v. Milwaukee
Metropolitan Sewerage Dist., 60 F.3d 305, 309-10 (7th Cir.
1995); see Havinga v. Crowley Towing & Transp. Co., 24 F.3d
1480, 1488 (1st Cir. 1994), the results of which would be
available for use by the defendant in discovery and at trial;
there is no greater invasion of privacy by making existing
records available to the defendant. The judge can seal the
plaintiff’s psychiatric records and limit their use in the trial
(which is public) to the extent that the plaintiff’s interest in
privacy outweighs the probative value of the information
contained in the records. Northwestern Memorial Hospital v.
Nos. 04-3680, 05-1998, 05-3770 23
Ashcroft, 362 F.3d 923, 927 (7th Cir. 2004); In re Sealed Case
(Medical Records), 381 F.3d 1205, 1216-17 (D.C. Cir. 2004).
As for the cross-appeal, however, the Roes have a legiti-
mate interest in excluding from the litigation such portions
of the records as may refer exclusively to them, for their
mental condition is not germane to the plaintiff’s lawsuit.
They were entitled to intervene to protect that interest, a
substantial privacy interest. Fed. R. Civ. P. 24(a)(2); United
States v. Kemper Money Market Fund, Inc., 704 F.2d 389, 392
(7th Cir. 1983); Eng v. Coughlin, 865 F.2d 521, 526-27 (2d Cir.
1989).
To summarize, the judgment for the defendant is reversed
(together with the denial of the Roes’ motion to intervene)
and the award of costs vacated; the case is remanded for
further proceedings consistent with this opinion; and the
supplemental claims shall be reinstated.
24 Nos. 04-3680, 05-1998, 05-3770
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-28-06