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Sexual Harassment by a Supervisor Can Trigger Employer Liability

When a supervisor subjects an employee to a "tangible employment action" (i.e. hiring, firing, loss of pay, demotion), the employer can be held strictly liable, eliminating employer defenses such as prompt investigation and remedial action.

But what happens when the supervisor creates such a hostile work environment as to make continued work intolerable, forcing the employee to quit? Does a "constructive discharge" qualify as an employer taking a "tangible employment action?" If it does, even an effective employer investigation cannot block its liability.

At least two U.S. Courts of Appeal— the Third Circuit and the Seventh Circuit —have said yes. The U.S. Supreme Court will review the Third Circuit ruling.

The Facts of Harassment

A judicial clerk worked for a judge who reportedly perpetuated a pattern of workplace harassment that created a hostile environment. Harassment consisted of the following:

• Inquiring frequently about his subordinate's personal life;

• When told of a planned marital separation, the male judge advised his female clerk to avoid becoming promiscuous. Then, he offered to purchase her a vibrator so she would not mess around. The clerk became very embarrassed and informed the judge that she did not like to discuss such topics with him and left the room;

• Repeatedly telling the clerk that she was beautiful (50 to 100 times over five months);

• Shook her hand daily when she came to work and left, but later discontinued this touching practice because he realized he was doing it for physical contact with her and that it was inappropriate;

• Called her into his office to tell her that lawyers at the courthouse were talking to her mainly because she "wore a thin bra and it was see-through," which brought her to tears and she went home and changed clothes;

• Told her he wanted to kiss her when courthouse rumors about them surfaced, but she expressed her disgust at that and told the judge he should pray for forgiveness, but he laughed at her;

• Scared her when he brought her face up near his and said if he ever found out she was shacking up with anybody he would kill her;

• And then, when her protests continued, the judge took the official action of transferring her to a new judge and made the suggestion that she resign.

The court interpreted this last supervisory action as one where a jury could determine that the employee's decision to resign resulted at least in part from the judge's official actions in transferring her and suggesting resignation.

The outcome of the case may well have been determined by what happened next: When the clerk formally reported this misconduct to a staff supervisor, that supervisor did not advise her what to do or investigate the complaints. Then she complained to a judge who only told her to "take a week's administrative leave." Worse yet, when she returned to work, she was reassigned to the offending judge. That judge then was very cold and noncommunicative to the clerk and told her how angry he was at her for reporting his antics.

The Appeals Court found that an employee compelled to quit due to a severe sexual-harassment hostile environment is a "tangible employment action" (depriving the employer of the prompt-investigation-and-remedying affirmative program defense). A constructive discharge occurs when an employee resigns his current position because the employee considers the conditions intolerable and a reasonable employee also would have found the conditions unbearable to remain in the job.

In the court's view, there is a clear distinction between harassment by coworkers (where the employer's good antidiscrimination program and response defense can survive) and by supervisors (where it may not):

The common thread equating constructive discharge with other types of tangible employment actions will impose liability on employers when the offending employee has not been empowered by the employer to take the actions at issue. However, there can be, as noted by the Second Circuit, a striking difference between actions taken by coworkers and actions taken by supervisors. Unlike a coworker, a supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his control. Additionally, economic sanctions imposed by a supervisor typically are ratified or approved by the employer. For these reasons, we believe that it is appropriate to draw a distinction between a constructive discharge caused by coemployees and a constructive discharge caused by supervisor. Specifically, in circumstances where official actions by the supervisor make employment intolerable. We believe a constructive discharge may be considered a tangible employment action. We believe this to be such a case.

This would be a good case to include in your awareness training of supervisors and managers (Melissa Robinson v. Warren A. Sappington, Judge, et al., 7th Cir. Dec. 9, 2003).

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