When is an employer AUTOMATICALLY liable for a supervisor’s sexual harassment of a subordinate?

Often, an employer has affirmative defenses when an employee accuses a supervisor of sexual harassment. But Title VII of the Civil Rights Act of 1964 makes liability automatic in two ways.

First, there’s the situation involving quid pro quo sexual harassment. That happens when a supervisor conditions some tangible employment action on a subordinate’s submission to sexual demands. In plain English, “Sleep with me or you’re fired.” If the supervisor follows through on that threat, then the employer is vicariously liable. Again, in plain English, the employer is screwed.

Another possibility is a hostile work environment (i.e., any other form of actionable sexual harassment) involving a resulting adverse “tangible employment action.” To be clear, a tangible employment action is any significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.

But suppose a supervisor sexually harasses a subordinate, as was the case in this recent Fifth Circuit decision. Is the company legally responsible if the supervisor merely threatens the subordinate with a tangible employment action but never follows through on that threat?

Relying on the Supreme Court’s earlier opinion in Burlington Industries, Inc. v. Ellerth, the Fifth Circuit concluded that threats alone are insufficient to establish a tangible employment action because “a tangible employment decision requires an official act of the enterprise, a company act.” In Ellerth, the Supreme Court distinguished between Title VII sexual harassment cases involving offensive behavior that creates a hostile work environment and those involving threats that are carried out.

In the Fifth Circuit, the plaintiff complained about her supervisor and requested (and received) reassignment away from him. Accordingly, the court concluded she did not endure a “tangible employment action” at his hands. That left the defendant with the ability to invoke affirmative defenses, namely, demonstrating that (1) it exercised reasonable care to prevent and correct any such sexual harassment promptly and (2) the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities the defendant had provided to avoid the harm otherwise.

Here, the plaintiff delayed in complaining about her supervisor (even though she knew about the defendant’s preventative and corrective sexual harassment policies). Although the plaintiff argued that she feared retaliation, But all harassment victims risk retaliation when they complain. So, unless the plaintiff has evidence to support her fears, which she did not, her delay in complaining was unreasonable. Then, once she did complain, the defendant began investigating the next day, and the plaintiff did not interact with her harasser thereafter, thus satisfying the “reasonable care” prong.

Defendant wins. Case dismissed.