WHAT SHOULD EMPLOYERS DO TO BE ABLE TO ESTABLISH THE AFFIRMATIVE DEFENSE?
| The Supreme Court held that where the commission of supervisor harassment does not culminate in a “tangible employment action” (as in both Faragher and Ellerth), the employer may raise as an affirmative defense to liability or damages that it (a) “exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998). |
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What is an employer’s reasonable care to prevent and correct any sexually harassing behavior?
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| Whether the employer exercised reasonable care to prevent any sexually harassing conduct will be determined based on what actions the employer took prior to receiving a sexual harassment complaint to prevent such behavior in its workplace. Since Faragher and Ellerth, courts generally have found that employers exercised reasonable care to prevent harassment where they are able to show that they adopted and distributed a policy that clearly communicates that harassment is not tolerated, and that they have a complaint or grievance procedure in place. Proof that its employees received the policy is also effective in establishing the first prong of the affirmative defense. |
| Whether the employer exercised reasonable care to correct promptly any sexually harassing conduct will be determined based on what actions the employer took after receiving a sexual harassment complaint to remedy such behavior. |
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The employers in the following cases successfully established that they exercised reasonable care to prevent and correct promptly the alleged harassment:
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| In Dayes v. Pace Univ., No. 98 Civ. 3675 (WHP), 2000 WL 307382 (S.D.N.Y. Mar. 24, 2000), aff’d, ___ F.3d ___, No. 00 Civ. 7641, 2001 WL 99831 (S.D.N.Y. Jan. 19, 2001), the employer met the first element of its affirmative defense, and the court granted summary judgment, because it was undisputed that the employer had a grievance procedure set forth in its employee handbook, along with the employer’s policy of prohibiting sexual harassment. The record also established that the employer responded promptly to plaintiff’s complaint of harassment. After plaintiff complained about the alleged harasser, the alleged harasser was told that plaintiff was uncomfortable with his behavior. Thereafter, plaintiff concedes that she experienced no further incidents of harassment. Thus, the employer acted reasonably to prevent and correct harassment in the workplace. |
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| In Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th Cir. 1999), the court affirmed summary judgment for the employer because it had an effective sexual harassment policy which called for employees notifying designated managers of any alleged incidents of harassment. Plaintiff failed to notify any of these managers, and instead, notified a co-worker of the alleged harassment. Further, she asked that a non-managerial employee confront the harasser. This was arranged by the employer. Thereafter, the plaintiff never again complained to management about the continuing harassment. The court noted that while delegating the tasks of confronting the harasser to a non-supervising employee is not appropriate, it was in line with the plaintiff’s wishes. Further, since she failed to bring the continuing harassment to management’s attention, it was reasonable for the employer to conclude that no further action was necessary. |
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| In Madray v. Publix Supermarkets, Inc., 208 F.3d 1290 (11th Cir.), cert. denied, 121 S. Ct. 303 (2000), a hostile work environment case, the court granted summary judgment for the employer holding that plaintiff’s failure to notify designated managerial employees of her claimed sexual harassment failed to put the employer on notice. The plaintiff told midlevel managers who were not designated to receive complaints of the alleged harassment. But see, Breda v. Wolf Camera & Video, 222 F.3d 886 (11th Cir. 2000) (reversing district court’s grant of summary judgment for the employer, and finding that where the employer’s policy provided that store managers were to refer complaints to the district manager and plaintiff reported harassment to a store manager, who failed to refer the complaint, the employer had actual notice of the harassment) |
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| In Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548 (11th Cir. 1997), the plaintiff alleged that she had been subjected to five (5) years of unwelcome sexual advances and remarks. During the period, the employer had an effective anti-sexual harassment policy which it communicated to employees. The plaintiff received training on the policy three years after the alleged harassment began and more than two years before she used the procedures to inform management. The employer raised the Faragher affirmative defense. The court affirmed summary judgment for the employer, holding that “once an [employer] has developed and promulgated an effective and comprehensive anti-sexual harassment policy, aggressively and thoroughly disseminated the information and procedures contained in the policy to its staff, and demonstrated a commitment to adhering to this policy, it has fulfilled its obligation to make reasonably diligent efforts to ‘know what is going on’ . . . beyond this point, it is incumbent upon the employees to utilize the procedural mechanisms established by the company specifically to address problems and grievances.” Id. at 1554. See also Guerra v. Editorial Televisa-USA, Inc., No. 97 Civ. 3670, 1999 U.S. Dist. LEXIS 10082 (S.D. Fla. June 2, 1999) (noting that while the fact that a plaintiff did not receive a copy of the employer’s policy or handbook might be fatal to an employer’s motion for summary judgment, where the plaintiff testified that she knew to whom she should complain, the fact that did she not receive the policy was immaterial). |
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| In Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999), cert. denied, 120 S. Ct. 1959 (2000), the court found that the defendant exercised reasonable care to prevent and correct sexually harassing conduct because it had an anti-harassment policy with complaint procedures in place, and there was undisputed evidence that it endeavored to investigate and remedy problems reported by its employees. |
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| In Savino v. C.P. Hall Co., 199 F.3d 925 (7th Cir. 1999), the court found that the employer established the first prong of the affirmative defense where it posted an anti-harassment policy with instructions for reporting harassing behavior, and the employer had promptly investigated and acted reasonably to remedy the harassment which plaintiff reported. Successful prevention of subsequent harassment was not required to establish the first prong of the defense. |
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| In Brown v. Perry, 184 F.3d 388 (4th Cir. 1999), the employer satisfied the first element of the affirmative defense by having an anti-harassment policy in place, including a complaint procedure, to deter sexual harassment. Where, like here, there was no evidence that the employer adopted or administered the policy in bad faith or that the policy itself was defective, the existence of such a policy “militates strongly in favor of a conclusion that the employer ‘exercised reasonable care to prevent’ and promptly correct sexual harassment.” Id. at 396 (citation omitted). The employer satisfied the corrective prong of the affirmative defense by offering immediate, unconditional support to the victim and suggesting that the she pursue her EEO remedies. The court held that these actions constituted reasonable efforts to prevent further incidents of harassment, regardless of whether the effort was ultimately unsuccessful. The employer also took reasonable corrective action by issuing a restraining order against the accused harasser from having contact with employees in plaintiff’s department. |
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| The court in Meadows v. County of Tulare, 191 F.3d 460 (9th Cir. 1999), found the employer met the first prong of the affirmative defense by having a policy prohibiting harassment and an established complaint procedure in place, and acting promptly to correct reported harassing behavior. The court implied that the employer’s response may vary depending on specific circumstances, like whether the plaintiff/employee complained specifically about the harassing behavior and whether the plaintiff/employee refused to assist the investigator in the investigation. |
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| In Barua v. Credit Lyonnais-U.S. Branches, No. 97 Civ. 7991 (JSR), 1998 WL 915892 (S.D.N.Y. Dec. 30, 1998), the court concluded that the employer exercised reasonable care to prevent harassment because its employee handbook included a policy prohibiting discrimination and retaliation, and had a complaint procedure with several avenues for grievances. Moreover, the court found that the employer exercised reasonable care to correct harassment because shortly after the plaintiff first complained to the Human Resource Department, the employer met with the harasser and reprimanded him. Shortly thereafter, the harasser was removed as manager of the plaintiff’s department and transferred to a non-supervisory position in a different department. Furthermore, no further harassment occurred after plaintiff complained. |
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In some cases, courts have refused to find that an employer exercised reasonable care to prevent or correct promptly alleged harassment where:
- The employer had prior knowledge of the harasser’s history of inappropriate behavior, but took no action to prevent its reoccurrence.
- The employer had no policy against harassment in place.
- The employer had no complaint procedure in place.
- The employer’s complaint procedure was ineffective because, for example, employees were directed to complain only to one person such as their supervisor, or it contained strict time limits within which a complaint had to be filed.
- An investigation was not commenced until some time after the employee complained.
- The employer’s decision to designate a particular person to receive complaints was questionable in light of the complaint-receiver’s inappropriate response to complaints.
- The employer failed to take any (or effective) action to discipline a harasser after an investigation revealed that an employee’s complaint had merit.
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Cases holding employer failed to exercise reasonable care to prevent or correct promptly alleged harassment:
- In Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp. 2d 414 (S.D.N.Y. 1998), the court found that a factual dispute existed as to whether the employer prevented and promptly corrected harassment because although there was an anti-harassment policy and an avenue for complaint, the plaintiff’s allegations of inappropriate behavior by Vice President of Human Resources, the manager designated by the employer to hear such complaints, called into question whether the employer exercised reasonable care in its designation. The plaintiff alleged that the Vice President made inappropriate comments when she complained (e.g., commented that she was very attractive and suggested that she should enjoy herself a little). The court also found that there was a factual dispute as to whether plaintiff’s complaints of harassment were adequately investigated and promptly corrected. Id. at 431.
- In Meng v. Ipanema Shoe Corp., 73 F. Supp. 2d 392 (S.D.N.Y. 1999), the court denied summary judgment where there was a question of fact as to the timing and circumstances under which the plaintiff/employee received the Employee Handbook that contained the employer’s sexual harassment prevention policy. The employer alleged that the Handbook was distributed to all new employees, and that employees including plaintiff attended a seminar on sexual harassment. However, the plaintiff testified that she did not receive a copy of the Handbook until late in her employment, that she never read applicable parts until after her termination, and that the seminar she attended included a discussion of sexual harassment, but there was no distribution of the sexual harassment policy or instructions for reporting incidents of harassment. Thus, whether the employer’s actions were reasonable is a factual question for the jury.
- In Hurley v. Atlantic City Police Dep’t, 174 F.3d 95 (3d Cir. 1999), cert. denied, 528 U.S. 1074 (2000), the court noted that “Ellerth and Faragher do not, as the defendants seem to assume, focus mechanically on the formal existence of a sexual harassment policy.” Id. at 118. Rather, the employer must enforce its sexual harassment policy in order to prevent and correct sexual harassment. Finding that employer’s policies were ineffective and unimplemented, the court held that the defendant could not have satisfied the first prong of the defense.
- In Smith v. First Union Nat’l Bank, 202 F.3d 234 (4th Cir. 2000), the court noted that a defective or dysfunctional policy does not necessarily negate an employer’s affirmative defense. However, where the plaintiff’s supervisor and the supervisor’s boss both may have told plaintiff not to complain, there was a genuine issue about the policy’s effectiveness, such that the employer could not establish the first prong of the defense for purposes of summary judgment.
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What is reasonable plaintiff’s conduct?
Generally, a timely complaint of actionable harassment by an employee will defeat the affirmative defense.
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Courts have found that the plaintiff/employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise where:
- The plaintiff failed to complain to his or her employer, despite there being no evidence of threatened retaliation.
- The plaintiff failed to follow the procedures provided for in the employer’s established harassment policy.
- The plaintiff refused to cooperate with the employer’s investigation of the plaintiff’s harassment complaint.
- The plaintiff failed to notify the employer of the harassment in a timely fashion.
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Cases holding plaintiff was unreasonable in failing to take advantage of any preventive or corrective opportunities provided by employer or to avoid harm otherwise:
- In Patterson v. CBS, Inc., No. 94 Civ. 2562 (KTD), 2000 WL 666337 (S.D.N.Y. May 22, 2000), the employer met the second prong of the affirmative defense because the plaintiff did not report acts of alleged work place harassment. Although plaintiff cited “conclusory assertions of generalized fear of repercussions,” as the reason for not complaining, the court held that such general fear of retaliation, not based in any statement or representation made by the employer, is not a reasonable ground for failing to complain. Id.
- A significant delay in complaining about alleged harassment may be considered “unreasonable” as a matter of law. In Dayes v. Pace Univ., No. 98 Civ. 3675 (WHP), 2000 WL 307382 (S.D.N.Y. Mar. 24, 2000), aff’d, ___ F.3d ___, No. 00 Civ. 7641, 2001 WL 99831 (S.D.N.Y. Jan. 19, 2001), the employee alleged that she was initially harassed in February 1995, but she did not complain to Human Resources until one year later, after the harasser “touch[ed]” her back. Id. at *6. The court held that plaintiff’s one-year delay establishes that she unreasonably delayed in availing herself of the employer’s available corrective procedures, and thus, the employer established the second element of the defense.
- In Fierro v. Saks Fifth Ave., 13 F. Supp. 2d 481 (S.D.N.Y. 1998), the court held as a matter of law that generalized fears of retaliation or futility can never constitute reasonable grounds for an employee’s failure to complain to his or her employer. According to the court, “employees must be required to accept responsibility for alerting their employers to the possibility of harassment.” Id. at 492. Plaintiff failed to (i) specify the repercussions he feared other than his general statement that it would lead to unpleasantness if he complained; (ii) cite to other employees who were subjected to retaliation because they availed themselves of the complaint procedures; (iii) mention the alleged harassment to his wife; or (iv) make any mention of it when informed that he was about to be terminated, “any perceived harassment during [the plaintiff]’s employment was so only by reason of its potential utility for this litigation.” Id. at 492-93. See also Madray v. Publix Super Mkts., 30 F. Supp. 2d 1371, 1375 (S.D. Fla. 1998), aff’d, 208 F.3d 1290 (11th Cir.), cert. denied, 121 S. Ct. 303 (2000) (finding that “[a]n employee’s generalized fear of repercussions cannot form the basis for an employee’s failure to complain to his or her employer”).
- In Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999), cert. denied, 120 S. Ct. 1959 (2000), the plaintiff unreasonably hesitated in coming forth with her allegations. The court ruled that for an employee’s reasonable apprehension in coming forth with allegations of harassment “must be based on an apprehension of what the employer might do, not merely on concern about the reaction of co-workers.” Id. at 295.
- In Brown v. Perry, 184 F.3d 388, 397 (4th Cir. 1999), the employer proved the second element of the affirmative defense by demonstrating that the plaintiff “‘unreasonably failed . . . to avoid harm otherwise.'” (Citation omitted) In this case, the plaintiff was allegedly sexually harassed twice by the same person in similar situations. The first occasion was at a conference, where the plaintiff voluntary stayed in her supervisor’s hotel room late at night. Less than six months later, the plaintiff unnecessarily put herself in the same situation that lent itself to the same kind of advances, as the plaintiff voluntarily remained alone with her supervisor in his hotel room at night, accepted his invitation to visit a pub and a bar, and then went back again to his hotel room at midnight. The court held that “[i]n light of her previous history with [this supervisor], no reasonable factfinder could reach any conclusion other than that [the plaintiff] ‘unreasonably failed . . . to avoid harm.'” Id.
- In Shaw v. AutoZone, Inc., 180 F.3d 806, 813 (7th Cir. 1999), cert. denied, 528 U.S. 1076 (2000), the court held that “subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee’s duty under Ellerth to alert the employer to the allegedly hostile environment.” In so holding, the court rejected plaintiff’s argument that she acted reasonably, even if she was legitimately uncomfortable discussing the offensive sexual conduct to which she was subjected.
- In Montero v. AGCO Corp., 192 F.3d 856 (9th Cir. 1999), the court found that the plaintiff unreasonably failed to take advantage of the preventive and corrective measures provided by the employer where she waited nearly two years to report the alleged conduct (despite the fact that she did eventually complain). Plaintiff knew about knew about the employer’s policy prohibiting sexual harassment, had received several copies of it, and knew whom to contact if she was being subjected to sexual harassment, and when plaintiff reported the conduct, the employer’s reaction was “swift and certain.” Id. at 863. See also Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1299 (11th Cir.), cert. denied, 121 S. Ct. 303 (2000).
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Cases holding that the plaintiff was not unreasonable in failing to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise:
- In Seepersad v. D.A.O.R. Sec., Inc., No. 97 Civ. 2086, 1998 WL 474205 (S.D.N.Y. Aug. 12, 1998), the court found that plaintiff’s “near-daily” complaints of harassment for almost a week constituted reasonable behavior under the circumstances.
- In Greene v. Dalton, 164 F.3d 671 (D.C. Cir. 1999), the court explained that to prove the affirmative defense, the employer had to show not merely that the plaintiff inexcusably delayed reporting the alleged rape, but that a reasonable person in the plaintiff’s place would have come forward early enough to prevent the harassment from becoming severe or pervasive, reasoning: the “‘failure to avail’ standard is not intended to punish the plaintiff merely for being dilatory. Rather, it ‘reflects an . . . obvious policy imported from the general theory of damages,’ namely, that the victim has a duty to mitigate her damages. ‘If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and . . . no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.'” Id. at 674 (quoting Faragher v. Boca Raton, 524 U.S. 775, 807 (1998)).
- In Watts v. Kroger Co., 170 F.3d 505 (5th Cir. 1999), the court rejected the defendant’s argument that the plaintiff acted unreasonably because she waited to complain, stating that although the harassment intensified in the spring of 1994, a jury could find that waiting until July of that same year before complaining was not unreasonable. The court also rejected the defendant’s contention that because she filed a union grievance, rather than going through the company’s sexual harassment policies, the plaintiff acted unreasonably, explaining “[Plaintiff]’s filing of a union grievance comports with the Burlington/Faragher rubric. The affirmative defense allows the Plaintiff employee to take corrective opportunities provided by the employer ‘or to avoid harm otherwise.’ Taking advantage of the union grievance procedure falls within this language because both the employer and union procedures are corrective mechanisms designed to avoid harm.” Id. at 511 (citation omitted).
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What Happens When Employee and Employer Act Reasonably?
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| There is an open issue, highlighted by Justice Thomas’ dissent in both Faragher and Ellerth, regarding the application of the affirmative defense when an employer satisfies the first prong by acting reasonably, but the plaintiff also acts reasonably by making a timely complaint. The Faragher and Ellerth affirmative defense would seem to require an employer to prove both that it acted reasonably, and that the plaintiff did not, but arguably does not address the situation where a complaint is made and proper remedial action was taken. Several courts have refused to impose liability on an employer that was able to show that it exercised reasonable care to prevent and correct promptly the alleged harassment, despite its inability to satisfy the second prong of the test because the plaintiff did in fact complain. See Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5th Cir. 1999). Nonetheless, other courts have found the employer liable in circumstances where the plaintiff complained and the employer responded reasonably. See DeWitt v. Lieberman, 48 F. Supp. 2d 280 (S.D.N.Y. 1999) (finding genuine issue as to the applicability of the affirmative defense where the first prong was undisputed). |
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Who is An Immediate Supervisor?
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- In enunciating the new standard of employer liability, the Faragher and Ellerth Courts did not distinguish between a high level supervisor and a low level supervisor, nor did it address when a harasser will be considered a “supervisor with immediate (or successively higher) authority over the employee.” Faragher, 524 U.S. at 777; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998). Post-Faragher courts have addressed whether the harasser at issue should be viewed as an “immediate supervisor” such that the employer should be subjected to vicarious liability, and, in the absence of a tangible employment action, permitted to use the affirmative defense. Specifically, courts have found that harassers were immediate supervisors where they had the power to make or influence employment decisions, and, particularly, the terms and conditions of the plaintiff’s employment, took actions that could only be taken by those in supervisory roles, or had special authority enhancing their ability to harass.
- Cases finding that plaintiff was harassed by an “immediate supervisor”:
- In Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp. 2d 414, 430-31 (S.D.N.Y. 1998), the court applied the Faragher/Ellerth analysis to alleged harassment by the Vice President of Human Resources who was “neither [plaintiff’s] co-worker nor her ‘immediate’ supervisor” because of “his station,” to the underwriter who supervised the plaintiff’s work for him and thus, arguably was her “supervisor,” and to her immediate supervisor.
- In Durham Life Ins. Co. v. Evans, 166 F.3d 139, 154 (3d Cir. 1999), the court found that the harasser should be considered plaintiff’s immediate supervisor because he was part of a three-person team that convinced the plaintiff’s direct supervisor to strip the plaintiff of her office and to instigate the employer’s lawsuit against her — despite the fact that the harasser did not have complete authority to act on the employer’s behalf without the agreement of others. The court declined to decide what it termed an “interesting claim” by the employer — that the affirmative defense should apply because the plaintiff had some “non-tangible notice of discrimination” before the adverse action was taken against her. Id. In other words, the employer argued, the first time someone made a discriminatory remark to her, if plaintiff had reported it, the employer would have investigated and stopped the problem before the tangible action occurred, and, thus, the employer should be permitted to assert the affirmative defense.
- Cases finding that the harasser was not the plaintiff’s “immediate supervisor”:
- In Summerville v. Ross/Abbott Lab., No. 98 Civ. 3517, 1999 WL 623786 (6th Cir. Aug. 10, 1999), the court held that the alleged harasser was not a supervisory employee because he did not exercise significant control over the plaintiff’s hiring, firing or conditions of employment. In applying this standard, the court was not persuaded by plaintiff’s conclusory assertions that the alleged harasser was her supervisor. In fact, the record indicated that, at her deposition, when asked if the alleged harasser was an “hourly co-worker” that worked with her, she responded “[y]es,” and indicated a different person to be her “direct supervisor.” Id at *3. Moreover, while the alleged harasser had the title of “[c]rew [l]eader,” the record reflected that the title pertained to a position of leadership in an employee “peer group,” not a position with power to affect the terms and conditions of the plaintiff/employee’s employment. Id. Thus, the court found no evidence in the record that the alleged harasser had any supervisory power over the plaintiff/employee.
- In Mikels v. City of Durham, 183 F.3d 323, 334 (4th Cir. 1999), the court held that an alleged harasser who was a “superior” in rank but actually had no power to take tangible employment actions against the plaintiff/employee was not a supervisor for the purposes of discovering an aided-by-agency relationship. While the alleged harasser could direct the plaintiff’s operational conduct while on duty, the plaintiff was not isolated from the continuing protective power of higher management. Additionally, the plaintiff thought that a different person was her direct supervisor, and she had immediate access to him without going through the harassing employee. Further, the court noted that the plaintiff did not indicate any sense of “special vulnerability or defenselessness deriving from whatever authority [the harassing employee’s] rank conferred,” as she rebuffed him sharply after his unwelcome conduct. Id. The plaintiff’s profanity-laced and obscene reaction to the harassment was natural for one who regards her harasser as a co-employee, not a supervisor.
- What does and does not constitute tangible employment action?
- According to Faragher and Ellerth, when “tangible employment action” is taken by a harassing supervisor with immediate authority over the plaintiff, the defending employer is strictly liable for the supervisor’s actions. In such cases, the employer is precluded from raising the affirmative defense to liability. Consequently, whether the commission of supervisor harassment culminates in a “tangible employment action” has been a key issue addressed by many of the post-Faragher/Ellerth courts.
- Case finding that a “tangible employment action” was taken where plaintiff were subjected to discharge, demotion, or undesirable reassignment (e.g., with significantly different job responsibilities):
- In Hasbrouck v. BankAmerica Hous. Servs., Inc., 105 F. Supp. 2d 31, 35 (N.D.N.Y. 2000), the court held that the supervisor’s actions in removing two of sales employee’s major accounts was a “tangible employment action” for purposes of employee’s Title VII harassment action. Loss of the accounts could have a very significant effect on the employee’s earnings through the bonus or commission structure of the employer.
- In Poole v. Country Club, 129 F.3d 551, 553 (11th Cir. 1997), the court held that a plaintiff “[s]tripped of all responsibility, given only a chair and no desk, and isolated from conversations with other workers” had a legitimate claim that she was constructively discharged.
- However, courts seem unwilling to expand the concept of “tangible employment action” broader than the concept of discharge (constructive or actual), demotion, or undesirable reassignment. Cases finding “no tangible employment action” was taken:
- In Rainey v. Miami-Dade County., No. 99 Civ. 1815, 2000 U.S. Dist. LEXIS 2508 (S.D. Fla. Jan. 13), the court rejected plaintiff’s claim that she suffered a tangible employment action where she claimed that she was given extra work, and was moved from her office for a short period of time while her sexual harassment claims were being investigated, aff’d, 237 F.3d 636 (11th Cir. 2000). See also Guerra v. Editorial Televisa-USA, Inc., No. 97 Civ. 3670, 1999 U.S. Dist. LEXIS 10082 (S.D. Fla. June 2, 1999). In Guerra, the court allowed the employer’s assertion of the Faragher affirmative defense, finding no tangible employment action where plaintiff’s claim was that her job duties increased after her harasser was fired, and not as a direct result of the harassment.
- In Pritchard v. Earthgrains Baking Co., No. 7:98 Civ 0536, 1999 WL 397910 (W.D. Va. Mar. 5, 1999), the court found no tangible employment action where plaintiff was terminated for a legitimate, non-discriminatory reason. Further, plaintiff’s pre-termination job reassignment from “bun seeder” to “depanner” did not involve a significant change in responsibilities or benefits, and therefore was not serious enough to qualify as a tangible employment action. Id. at *8. Likewise, plaintiff’s reduction of hours, which resulted in a wage decrease, was not a tangible employment action because there was evidence that other employees’ hours were also cut. Thus, the court held that there was no tangible employment action that would bar a Faragher/Ellerth defense.
- The court found no tangible employment action in Watts v. Kroger Co., 170 F.3d 505, 510 (5th Cir. 1999), stating, “[s]imply changing one’s work schedule is not a change in [plaintiff’s] employment status. Neither is expanding the duties of one’s job as a member of the produce department to include mopping the floor, cleaning the chrome in the produce department, and requiring her to check with her supervisor before taking breaks.”
- In Meadows v. County of Tulare, 191 F.3d 460 (9th Cir. 1999), the court held that the plaintiff’s transfer from one position to another, where plaintiff continued to receive the same pay and benefits, did not constitute a tangible employment action. The court noted that plaintiff did not argue that she experienced economic harm, or that her reassignment is undesirable or that her responsibilities changed significantly, facts which may bear on whether a transfer is a tangible employment action.
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MARTIN F. PAYSON is a Partner in the national labor, employment, benefits and immigration law firm of Jackson, Lewis, Schnitzler & Krupman. Since joining the firm in 1967, Mr. Payson has specialized in the practice of employment and labor law representing the interests of management.
is a partner at Jackson Lewis, a preventive labor, employment, immigration and benefits law firm representing management exclusively. Mr. Lotito is a graduate of Villanova University and Villanova Law School. He was named by Villanova as their Top Human Resources Alumnus of the 20th Century. He has devoted his entire professional career to representing management interests in labor and employment law. He is a member of the California and American Bar Associations. Mr. Lotito has received professional accreditation in the human resources field by achieving the SPHR designation for life. He is listed in “Who’s Who in American Law”, “Who’s Who in California” and is a Life Member of the National Registry of Who’s Who. Mr. Lotito was the first non-practitioner to Chair the Society For Human Resource Management, the largest human resource association in the world. He has traveled the globe for SHRM making presentations from Juneau, Alaska to Johannesburg, South Africa and many places in between. He is a past chairman of SHRM’s National Legislative Affairs Committee and served on its Employee and Labor Relations Committee. In these capacities, he has influenced legislation such as the ADA and has testified before the United States Senate and the House of Representatives. A frequent workshop presenter, Michael is noted for his wit, insights and practical solutions to workplace issues. He is a resource for TEC Worldwide, an international organization of company presidents. He has given numerous presentations before TEC groups and was named TEC’s Most Outstanding Resource. Most recently, he was honored as a member of TEC 200, a designation which places him among the top 1% of all TEC presenters from the many thousands who have participated in a TEC program. Mr. Lotito has appeared on PBS’ “NewsHour with Jim Lehrer”, Fox TV’s “The Schneider Report”, CBS Radio’s “Gil Gross Show”, frequently appears on National Public Radio, and was quoted in The New York Times and The Wall Street Journal regarding the EEOC’s guidelines on mental disabilities. He is regularly quoted on a variety of employment law topics in major publications including Forbes, Business Week, the Washington Post, the Wall Street Journal, the Boston Globe, USA Today, the Los Angeles Times, the San Francisco Chronicle, The Sacramento Bee, The National Law Journal, Nation’s Business, and The Conference Board’s magazine, Across The Board. Most recently he has been published by the Harvard Business Review.
