A tangible employment action occurs when a supervisor extorts sexual favors from an employee by conditioning the sex act on continued employment. Therefore, the Faragher/Ellerth affirmative defense is not available in such circumstances.
Watson Chevrolet routinely hired temps as onsite telemarketer’s. The temps sued for sexual harassment and settled for $207,000.00. (The temps were not even shown the company’s discriminatory harassment policy).
From day one, a secretary was subjected to sexual harassment by her supervisor. Nine months later, there was a complaint. Since there was no tangible adverse employment action and immediate corrective action after the complaint, the case was dismissed.
An employee who waited 3 months after the first act of alleged harassment did not act reasonably. The employer acted reasonably because it had a written anti-harassment policy, reinforced with an annual letter and training. Further, after the complaint, the employer took prompt corrective action.
A woman was awarded $400,000 in punitive damages by a jury. The award was reduced to $50,000 because of the statutory cap. The 4th Circuit subsequently eliminated punitive damages “since there was no proof that . . . management ever had actual knowledge of the harassment.”
A male salesperson was struck in the genitals on several occasions by a co-worker who thought it was funny. Since there was no evidence of hostility toward men, there could not be a sexual harassment case.
ICN Pharmaceuticals settled a sexual harassment matter for $3.5 million. A shareholder’s derivative suit alleged that the Board should have made the CEO pay. The case was dismissed because there was no “pre-suit demand” or evidence that this was not just a “routine business decision.”
A supervisor required a subordinate insurance agent to engage in sex acts or face employment termination. The District Court dismissed the case because of the affirmative defenses afforded to employers. The Second Circuit overruled finding that such a threat is a tangible employment action. Because of the tangible employment action, the affirmative defenses did not apply.
A 34 year old female government proofreader was sexually harassed by a female co-worker. The trial court awarded plaintiff the pay difference between her old job and her new job for 26 years – $378,000.00. The D.C. Circuit reversed because the award was speculative.
A factory worker sued her employer after being grabbed “with force.” The Eighth Circuit found that the employer could only be liable if it “knew or should have known of the harassment and failed to take prompt remedial action” since the harassment was committed by a co-worker, not a supervisor. The alleged harasser was suspended for five days, warned, sent to training and the harassment stopped. The prompt remedial action resulted in no employer liability.