The alleged actions of Judge Sappington are so egregious that the holding that they support a hostile environment claim is of relatively little significance. Only if the lower court holding had been affirmed would the decision be noteworthy on that score.
However, the holding creating a distinction for constructive discharges based on whether the offending party is a supervisor or co-employee is a new and important rule of law.
Were the facts in this case to occur in Wisconsin, however, against a circuit court judge, the decision raises, but does not answer, many interesting questions about who is liable.
Both the State of Wisconsin and the individual Wisconsin county could make an argument that each is not liable for sexual harassment by a judge. When considering a states liability, close attention must be paid to the lengthy footnote number 9.
The Seventh Circuit found there was no question that the Illinois judges were state, rather than county, employees. The same would be true in Wisconsin, as sec. 753.07(1) expressly provides that a circuit court judge is a state employee, not a county one.
However, the Seventh Circuit stated that, as employees of the state, any harassment inflicted by [the judges] on lower-level state employees under their direction can be imputed to the State of Illinois. This statement would not apply in a Wisconsin case, because judicial assistants are county employees, not lower-level state employees.
In the case at bar, none of the defendants argued that Robinson was exclusively an employee of the county. The court found that the parties acknowledge that the State of Illinois was, at the very least, Ms. Robinsons joint employer with the County.
The court noted, It is only the employees employer who may be held liable under Title VII, citing Williams v. Banning, 72 F.3d 552, 553 (7th Cir. 1995). Thus, were this case to be brought against a Wisconsin judge, the State could deny it is a joint employer of the assistant, and attempt to escape liability by distinguishing this case on that ground. Although the judge may supervise the assistant, that is insufficient to make him an employer under Title VII.
The State could also distinguish this case, because a chief judge in Wisconsin probably would not have the authority to shuffle the clerks between judges as Judge Greanias, the presiding judge in Macon County did.
The court noted, Judge Greanias, in his capacity as presiding judge, took the official action of transferring Ms. Robinson to Judge Francis and made the suggestion that she resign. The transfer was only possible because Judge Greanias had[d] been empowered by the [employer] … to make economic decisions affecting other employees under his or her control. … Consequently, because a jury could determine that Ms. Robinsons decision to resign resulted, a least in part, from Judge Greanias official actions in transferring Ms. Robinson to Judge Francis and in suggesting that she resign, we believe that it would be appropriate to hold the State of Illinois liable for Ms. Robinsons resulting resignation.
In Wisconsin, however, this reasoning would most likely not be applicable, because of Barland v. Eau Claire County, 216 Wis.2d 560, 575 N.W.2d 691 (1998).
In Barland, the Wisconsin Supreme Court held that circuit court judges have the exclusive, inherent constitutional authority to remove their judicial assistants. In Barland, the court upheld that authority vis-a-vis the legislature, but that authority could also be upheld against a chief judges attempt to move assistants between circuit court judges.
Thus, both means by which the Seventh Circuit imputed liability to the State of Illinois might not be applicable to impute liability on Wisconsin if a case like this arose here.
However, a principle cited by the court in rejecting the countys attempt to escape liability could be used to impute liability to the State of Wisconsin a States principles of internal organization cannot frustrate federal law.
A states avoiding responsibility for the sexual harassment of its employees (judges) by classifying their assistants as county employees would appear to frustrate federal law.
The countys liability is also problematic.
Macon County argued unsuccessfully that, because state principles of separation of powers prevent counties from interfering with the operations of the judiciary, Macon County cannot be a joint employer.
The Seventh Circuit rejected this argument, however, citing the principle above, concerning the frustration of federal law, and also the principle that, identification of an employer under Title VII is a question of federal law.
Thus, because a county is the judicial assistants employer, a Wisconsin county would also be a necessary party, at least, as in the case at bar.
Nevertheless, it must be remembered that the court only held that the county is a necessary party, and that it is a factual question who is an employer is under Title VII.
Ultimately, the court could hold that it would turn standard agency principles on their head to impose liability on the county, if it were found at trial that the county had absolutely no authority over the harassing judge, and that there was no wrongdoing on the part of any county employee or official.
Pursuant to Barland, a county has no power over a judges decision to remove a judicial assistant. Logically, therefore, a county could have no role in a constructive discharge as a result of a judges behavior.
It seems axiomatic that either the State of Wisconsin or the relevant county would have to pay any judgment, lest federal law be thwarted, but both have reasonable arguments that it should be the other.
– David Ziemer
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David Ziemer can be reached by email.