In its opinion in Baldwin v. Blue Cross/Blue Shield, the Eleventh Circuit ended Susan Baldwin's attempt to seek legal redress for the sexual harassment she alleges that she suffered at the hands of her supervisor. But this decision is much more than just a blow to a single plaintiff in a single case.

The ruling is a veritable minefield for future plaintiffs. Moreover, from a broader perspective, the ruling exposes fundamental flaws in the doctrine of employer liability for sexual harassment that has been crafted by the Supreme Court. These flaws make it too easy for employers to avoid liability, and too difficult for employees who have experienced actionable discrimination to recover.

THE HOSTILE ENVIRONMENT ALLEGED BY SUSAN BALDWIN

Baldwin worked for Blue Cross in Huntsville, Alabama, as a marketing representative. In November 2000, Scott Head became her boss when he was promoted to district manager. According to the facts as judged in the light most favorable to the plaintiff (the required stance for an appellate court reviewing a grant of summary judgment to the defendant), Head engaged in two types of conduct that Baldwin found unwelcome and offensive.

First, he used profanity regularly, and used sex-specific derogatory terms to refer to both employees and applicants. Male subordinates were “peckerwoods” and “cocksuckers”; female employees were “bitches” or “babes”; one female applicant was not hired, according to Head, because she was a “slut” and a “tramp.” (He apparently reserved “fucking bitch” for his wife, when complaining about her at work.)

The second type of conduct about which Baldwin complained was more serious and targeted directly at her. On July 26, 2001, Head accompanied Baldwin and other marketing representatives to a banquet for Blue Cross managers in Birmingham. During the banquet speech, Head leaned over to Baldwin and invited her to dance, party, and spend the night in his hotel room in Birmingham rather than driving home. “No one will ever know,” he promised. She declined the invitation politely and left to return to Huntsville.

While she was driving home, Head called and urged again that she spend the night with him. He said he was driving to her house in Huntsville and that he would be there with beer to pick her up. He called several more times, telling her during one call that he was at her house, waiting.