Sexual Harassment Developments

1. Faragher/Ellerth Developments

Sexual harassment by supervisors continues to be a major source of complaints. The traditional view was that supervisors acted for the company and so companies were help liable for what supervisors did. But that view began to erode as more and more companies began adopting anti-harassment policies and taking steps to prevent it from happening. In two 1998 decisions, Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764-65, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), the Supreme Court recognized the problem and established an affirmative defense for employers who do take such steps.

The elements of the defense are

  • there must not have been an "adverse employment action," i.e., a tangible effect on the plaintiff’s employment status, such as failure to hire, termination, denial of promotion, transfer, denial or raise, etc.

  • the employer must prove that it established an anti-harassment policy that includes an effective complaint procedure to both educate the workforce and deal with violations; and

  • the employer must prove that the plaintiff unreasonably failed to take advantage of the employer’s complaint procedure.

If these elements are satisfied, the employer can avoid liability for the misconduct of supervisors. Following are some developments regarding each of the elements.

Adverse Employment Actions

Constructive discharge – working conditions so terrible that no reasonable person would stay in them – do not constitute an "adverse employment action" for purposes of raising a Faragher/Ellerth affirmative defense, according to a South Carolina federal district court. The court’s rationale was that constructive discharge is not an action made with the authority or approval of the employer. Scott v. Ameritex Yarn, 72 F. Supp. 2d. 587 (D.S.C.,1999).

In a case brought by a male employee accused of sexually harassing a co-worker, a Virginia federal district court ruled that a workplace transfer was not an adverse employment action. The male employee had asked management to separate him from his accuser. He complained, however, when she was moved, along with her work group, into his building. The district court determined that moving his accuser into the same building was not an "adverse employment action," as it was for legitimate business reason. Volpone v. Caldera, 190 F.R.D. 177 (E.D.Va.,1999).

Establishment of Anti-Harassment Policy and Procedure

The Fourth Circuit has held that, in establishing a written anti-harassment policy to educate employees on their rights and responsibilities, the policy must state the law accurately. The plaintiff, a bank employee, alleged that she was subjected to a hostile work environment by a supervisor, but never complained. Although the employer had established a written anti-harassment policy in its employee handbook, and a complaint procedure, the policy, as stated, was defective. Of the two types of sexual harassment recognized by the law – quid pro quo and hostile environment – the handbook only described the former, i.e., attempts by a supervisor or co-worker to elicit sexual favors or conduct of a sexual nature. The policy left out the more prevalent hostile work environment harassment, which requires only that the plaintiff be singled out for disparate treatment due to sex and not as a prelude to sexual activity. The plaintiff explained that the reason she did not complain was that the policy, as written, did not appear to apply to her supervisor’s behavior. The Fourth Circuit agreed, holding that the employer could not raise a Faragher/Ellerth affirmative defense, as it had failed properly to advise the plaintiff of her rights under the law. Smith v. First Union Bank, No. 98-2200 (4th Cir. 2000).

Employee’s Unreasonable Failure to Use Employer’s Complaint Procedure

A plaintiff who had failed to report harassment under the employer’s complaint procedure argued that her failure was reasonable in light of her general fear that by doing so she would risk retaliation by her supervisor. A West Virginia federal district court disagreed, finding that generalized retaliation concerns do not provide a reasonable basis for failing to use the complaint procedure and, therefore, plaintiff was precluded from pursuing her case. Barrett v. Applied Radiant Energy Corp., 70 F. Supp. 2d. 644 (W.D.Va.,1999).

2. Hostile Work Environment Developments.

Flirting Held Not to Create a Hostile Work Environment The supervisor of a female water plant worker did not create a hostile work environment by flirting with her over a period of several months, according to a Maryland federal district court. The supervisor’s conduct included giving her presents, often in the form of cash, on number of occasions, and taking her with him on off-site trips, including one to a cemetery. He also had numerous conversations with her of a non-sexual nature, generally about himself. On the other hand, he once mumbled to her that he would not mind getting into the employee's pants and placed a condom under one of the presents he left for her. While acknowledging the inappropriate character of the comment and condom, the court held that the overall course of the supervisor's conduct reflected permissible "intersexual flirting" rather than pattern of discrimination needed to establish hostile environment. Naylor v. City of Bowie, 78 F. Supp. 2d 469 (D.Md.,1999).