Legal Bulletins

The Supreme Court recently reaffirmed its previous opinions which established the availability of an affirmative defense for employers in certain cases involving charges of sexual harassment by supervisors.
When supervisors act in an official capacity, they do so with the authority of the employer and if their actions constitute prohibited harassment or create a hostile environment, their wrongful conduct may be imputed to the employer for liability purposes.  In the 1998 Faragher and Ellerth decisions, however, the Supreme Court held that employers could raise an affirmative defense to vicarious liability in certain cases involving allegations of harassment by a supervisor where the employee was not subjected to a ”tangible employment action.”

In cases involving a tangible employment action, the affirmative defense is not available.  Where no tangible employment action results from the alleged harassment, the employer may defeat the employee’s claim by establishing two elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and; (2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid the harassment.
The Court defined a “tangible employment action” as one involving a significant change in employment status, such as hiring, firing, failing to promote, or an unfavorable reassignment or change in benefits.  The question of whether an event actually constitutes a “tangible employment action” may seem subject to easy analysis, but it is not always so clear.  In its recent opinion, the Court considered the allegations of a former Pennsylvania State Police employee who alleged that she was subjected to such severe sexual harassment by her supervisors that she was forced to resign her job.  The employee claimed that her working conditions became so intolerable that a reasonable person in her place would have felt compelled to resign.  Where an employee can establish that her resignation resulted from such adverse conditions, the resignation will be treated as a “constructive discharge”.
The lower court ruled that when a constructive discharge occurs, it should be treated like a termination and will always constitute a “tangible employment action,” thereby making the affirmative defense unavailable to the employer.  The Supreme Court reversed that decision.  It held that where an official act of the supervisor was not the “last straw” which caused the employee to resign, the affirmative defense is still available to the employer.  Where, however, a demotion, reduction in compensation or other tangible employment action precipitates the employee’s decision to resign, the affirmative defense will be unavailable to the employer.
Each year the number of harassment suits filed in federal and state courts increases.  The attorneys in our Labor and Employment Law Practice Group are experienced in drafting effective anti-harassment policies and providing employee training to assist employers in reducing their exposure to workplace problems and costly litigation which can result from harassment.