EEO LAW BASICS
CHAPTER 10
HARASSMENT

The first claim of harassment to be recognized by the U.S. Supreme Court involved sexual harassment. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Court held that a claim of sexual harassment may be actionable even if the harassment does not cause a direct economic injury.

Since 1986, claims of harassment have been recognized with respect to other protected classes. Circuit courts have expanded harassment to the following protected bases, applying the same legal standard as applies to sexual harassment claims:

1. Age
see, e.g., Burns v. AAF-McQuay, Inc., 166 F.3d 292 (4th Cir. 1999);

2. Race or national origin
see e.g., Celestine v. Citgo, 266 F.3d 343 (5th Cir. 2001);

3. Disability
see, e.g., Flowers v. Southern Reg’l Physician Servs., Inc., 247 F.3d 229 (5th Cir. 2001); and

4. Religion
see, e.g., Daron v. Premdor Entry Sys., 172 F.3d 48, 1998 U.S. App. LEXIS 31017 (6th Cir. Dec. 3, 1998).

Historically, harassment was divided into two basic categories:

1. Quid Pro Quo: Where a supervisor relies on actual or apparent authority to extort sexual favors from an employee and submission to those favors is an implicit or explicit condition of an individual’s employment or the basis for an employment decision.” See Barnes v. Costile, 561 F.2d 983 (D.C. Cir. 1977)

2. Hostile Environment: Where an individual has been required to endure a work environment that substantially affects a term or condition of the individual’s employment thought not directly causing economic harm. Meritor, 477 U.S. 57 (1986)

In 1998, the Supreme Court decided Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), which more clearly define the analysis of harassment claims and provide an affirmative defense to claims of environmental harassment. The Court abandoned the quid pro quo framework and introduced an analysis based on whether a (a) “tangible employment action” occurred or (b) the harassment is environmental.

1. Tangible Employment Action. The Court defined tangible employment action as a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Normally, a tangible employment action requires action of a supervisor or management employee. Direct economic harm is an important indicator, but courts have found tangible action in its absence.

2. Environmental Harassment: The Court did not redefine environmental harassment, but reaffirmed environmental harassment to be offensive conduct (both objectively and subjectively) based on sex so severe or pervasive as to alter the conditions of the employee’s employment and create an abusive working environment.

Since Faragher and Ellerth, the quid pro quo and hostile environment distinctions have been essentially abandoned and replaced with analysis of tangible employment action versus purely hostile environment harassment. American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

The elements where there is a tangible employment action are:

1. Membership in a protected group:
established by a statement of gender. The complaining employee may be of the same gender as the alleged harasser(s);

2. Sex based:
the conduct need not be sexual in nature, but must be “because of sex;”

3. The tangible employment action:
(see above);

4. The supervisor placed sexual demands on employee:
evidence of direct or express sexual demands is not required, but rather, courts have permitted a “broad array” of evidence to satisfy this element ; and

5. A nexus between tangible action and the employee’s acceptance or rejection of alleged harassment:
evidence relevant to a determination of the nexus includes the temporal relationship of the sexual demand and acceptance or rejection and the employment action, comparative evidence of how employees of the opposite gender were treated and evidence of the alleged harasser’s involvement in the adverse employment decision.

Following Faragher and Ellerth, when an employee can prove these elements, the employer is vicariously liable per se and is not entitled to an affirmative defense. American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

The elements of an environmental claim are:

1. Membership in a protected group:
established by a statement of gender. The complaining employee may be of the same gender as the alleged harasser(s);
2. Sex based:
the conduct need not be sexual in nature, but must be “because of sex;”

3. Unwelcome:
normally requires proof that the employee complained of the conduct or that the employer knew of the offensive conduct; and

4. Severe or pervasive:
the conduct must, both objectively and subjectively, alter the conditions of employment and create an abusing working environment:
The Supreme Court in Faragher and Ellerth set forth a two-pronged affirmative defense that, if satisfied, in some instances permits an employer to avoid liability even if an employee establishes a prima facie case of environmental harassment. The affirmative defense does not apply where there was a tangible employment action.

Prong 1:

The employer exercised reasonable care to prevent and correct promptly any harassment: Generally satisfaction of this prong requires that the employer have and disseminate a formal policy prohibiting harassment that includes a complaint procedure that allows an employee to bypass the offending supervisor. Courts will consider the policy, the employee’s complaint, if any, and the employer’s response. Analysis of this prong includes the promptness and effectiveness of the employer’s response (where a complaint was made) and the employer’s compliance with its policy prohibiting harassment.

Prong 2:

The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise: Generally, if an employee fails to come forward with a complaint, the courts typically find the employee unreasonably failed to take advantage of the preventative or corrective opportunities provided by the employer. Fear of retaliation is not an excuse.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

1. Harassment by high level manager.

Faragher and Ellerth suggest that harassment by an individual “indisputably within that class of an employer organization’s officials who may be treated as the organizations proxy” results in automatic liability. Courts have provided little guidance on this “proxy” component.

2. Harassment by a “supervisor.”

Where there has been no tangible employment action, the employer is presumptively liable, subject to the Faragher and Ellerth affirmative defense. Generally, supervisors are those whose authority includes the power to hire, fire, demote, promote, transfer or discipline. Absent authority such as this, an employee does not qualify as a “supervisor” for imputing liability to the employer.

3. Harassment by a co-worker.

Following Faragher and Ellerth, the courts have continued to apply a negligence standard to cases where the alleged harasser is a co-worker. The employee must prove the employer “knew or should have known” of the alleged harassment. Courts, in essence, largely consider the two prongs of the Faragher and Ellerth affirmative defense to determine negligence.

4. Harassment by nonemployees.

Courts apply the negligence standard reasoning that the employer ultimately controls the conditions of the work environment. In this instance, “appropriate corrective action” includes consideration of the authority and control the employer has over the nonemployee.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006