Appellate Court Rules That Employers Are Strictly Liable For Supervisor Sexual Harassment Involving Unfulfilled Threats Or Promises

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from discriminating employees on the basis of sex. Sexual harassment is a form of sex discrimination prohibited by Title VII. Having long represented victims of sexual harassment, our Central Florida sexual harassment attorneys have learned that quid pro quo is perhaps the most egregious form of sexual harassment. As explained by the U.S. Ninth Circuit Court of Appeals in Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994), “there can be no justification for requiring a worker to engage in sexual acts in order to obtain a job or job-related benefit, or to avoid a job-related detriment.” 

Definition Of Quid Pro Quo Sexual Harassment

Quid pro quo sexual harassment occurs when submission to or rejection of a supervisor’s sexual demands is used as the basis for an employment action with respect to the victim. The employment action affecting the victim may be an unfavorable employment action, such as discharging the victim for rejecting the supervisor’s sexual demands. The employment action affecting the victim may also be the promise of a favorable employment action, such as a promising the victim an increase in pay for submitting to the supervisor’s sexual demands. Quid pro quo sexual harassment also includes circumstances where a supervisor threatens to inflict an unfavorable employment action if the victim does not submit to or rejects the supervisor’s sexual demands, such as threatening the victim with discharge if the supervisor’s sexual demands are rejected.

U.S. Supreme Court & Quid Pro Quo Sexual Harassment 

In Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), the U.S. Supreme Court set forth the standards for employer liability for a supervisor’s sexually harassing conduct. Under Faragher/Ellerth, an employer is strictly or automatically liable for sexually harassing conduct by a supervisor which culminates in the taking of a tangible employment action against the victim, such as a discharge, demotion, or reduction in hours. When no tangible employment action is taken against the victim, an employer is permitted to raise an affirmative defense to liability. To prove the Faragher/Ellerth affirmative defense, the employer must establish that: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) that the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. If the employer establishes the Faragher/Ellerth affirmative defense, then the employer is not liable for the supervisor’s sexually harassing behavior. 

In promulgating the standards for employer liability for supervisor sexual harassment, the Ellerth Court seemingly downplayed the category of quid pro quo sexual harassment as a basis for establishing employer liability. Consequently, some courts in applying Ellerth have determined that that a supervisor’s unfulfilled threat of an unfavorable employment action or unfulfilled promise of a favorable employment action do not constitute do not constitute a tangible employment action for purposes of employer liability. Instead, these courts have concluded that a supervisor’s threat of an unfavorable employment action or promise of a favorable employment action must be carried out in order to constitute a tangible employment action for purposes of employer liability. In Kennedy v. Federal Express Corp., 698 Fed.Appx. 24 (2nd Cir. Oct. 5, 2017), the U.S. Second Circuit Court of Appeals rejected this line of decisions and construed Ellerth far more expansively.

Supervisor’s Unfulfilled Threats Or Promises

In that case, Lisa Kennedy (Kennedy) claimed that she was sexually harassed by a supervisor while employed by Federal Express Corporation (FedEx) in violation of the Title VII. According to Kennedy, the supervisor’s sexually harassing behavior included squeezing her breasts, attempting to reach up her shirt and kissing her, placing her hand on his genitals, and other inappropriate touching. Kennedy alleged that supervisor’s sexual harassment escalated when he forced her to have sexual intercourse with him on two occasions. Kennedy further alleged that that the supervisor told her “you take care of me, I’ll take care of you,” in the context of his sexual harassment and rape.

The trial court dismissed Kennedy’s sexual harassment claim. The trial court found that because the supervisor’s sexual harassment involved unfulfilled threats or promises, Kennedy did not suffer a tangible employment action and FedEx was not strictly or automatically liable for the supervisor’s harassment. Having found that no tangible employment action occurred, the trial court then turned to the issue of whether FedEx could avoid liability by establishing the Faragher/Ellerth affirmative defense. On that issue, the trial court determined that FedEx exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that Kennedy unreasonably failed to take advantage of preventive and corrective opportunities provided by FedEx. Consequently, the trial court concluded that FedEx was not liable for the supervisor’s sexual harassment of Kennedy.

Strict Liability For Supervisor’s Unfulfilled Threats Or Promises

On appeal, the Second Circuit reversed the trial court’s decision and reinstated Kennedy’s sexual harassment claim. The appellate court found that Kennedy had produced sufficient evidence establishing that her supervisor “engaged in quid pro quo harassment by making threats or promises that linked tangible job benefits to the acceptance or rejection of sexual advances.” The appellate court reasoned that based on Kennedy’s evidence that the supervisor told her “you take care of me, I’ll take care of you” in the context of the supervisor’s sexual harassment and rape, a reasonable jury “could conclude that Kennedy submitted to [the supervisor’s] sexual harassment because of a threat of discipline or promise of continued employment.” 

“Such quid pro quo harassment,” the appellate court determined, constitutes “a tangible employment action and deprives FedEx of its affirmative defense under Faragher/Ellerth.” In reversing the trial court’s conclusion that unfulfilled threats or promises do not constitute a tangible employment action for purposes of employer liability, the Second Circuit squarely held that a supervisor’s unfulfilled threats of an unfavorable employment action or promises of a favorable employment action constitute a tangible employment action for which the employer is strictly or automatically liable.

Free Consultation With Central Florida Sexual Harassment Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, we have more than fifteen years of experience representing employees who have been subjected to quid pro quo sexual harassment in the workplace. If you have been the victim of sexual harassment or have questions about your supervisor’s sexual behavior in the workplace, please contact our office for a free consultation with our Central Florida sexual harassment attorneys. Our employee rights law firm takes sexual harassment cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.