Are Employers Automatically Liable When A Supervisor Punishes An Employee For Rejecting Sexual Advances?
Traditionally, courts have recognized that sexual harassment in violation of Title VII of the Civil Rights Act of 1964 (Title VII) comes in two forms: quid pro quo sexual harassment and hostile work environment sexual harassment. As observed by the U.S. First Circuit Court of Appeals in Chamberlain v. 101 Realty, Inc.,915 F.2d 777, 783 (1st Cir. 1990), “[q]uid pro quo harassment [occurs] when a supervisor conditions the granting of an economic or other job benefit upon the receipt of sexual favors from a subordinate, or punishes that subordinate for refusing to comply.” However, as explained by the U.S. Eleventh Circuit Court of Appeals in Fredrick v. Sprint/United Management Co., 246 F.3d 1305 (11th Cir. 2001), the U.S. Supreme Court in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) “indicated that courts should no longer use the labels ‘quid pro quo’ and ‘hostile work environment’ to analyze whether an employer should be held liable for an employee’s Title VII claim concerning a supervisor’s sex-based harassment.”
Instead, as pointed out by the Fredrick court, the Supreme Court in Ellerth and Faragher determined that when “analyzing whether an employer should be held liable for a supervisor’s harassment courts should separate these cases into two groups: (1) harassment which culminates in a ‘tangible employment action,’ such as discharge, demotion or undesirable reassignment, and (2) harassment in which no adverse ‘tangible employment action’ is taken but which is sufficient to constructively alter an employee’s working conditions.” Under this analysis, an employer is automatically liable for sexual harassment committed by a supervisor when the harassment culminates in the taking of a tangible employment action against the victim. When no tangible employment action is taken, the employer may raise an affirmative defense to liability. In order to establish the affirmative defense and avoid liability for the supervisor’s sexual harassment, the employer must prove that: (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Unless it proves both elements of the affirmative defense, the employer is liable for the supervisor’s sexual harassment.
Quid Pro Quo Label Is Still Relevant
Although the Supreme Court has abandoned the commonly used categories of quid pro quo and hostile work environment, the terms quid pro quo and hostile work environment are still used to describe or illustrate the particular type of sexual harassment at issue. “In a ‘quid pro quo’ case, as explained the U.S. District Court for the Southern District of New York in Frank v. Plaza Const. Corp., 186 F.Supp.2d 420 (S.D. N.Y. 2002), “the court must determine whether the tangible employment action suffered by the victim resulted from her acceptance or rejection of the supervisor’s alleged sexual harassment.” When a supervisor engages in quid pro quo harassment and the supervisor subjects the victim to a tangible employment action, such as termination, for rejecting the sexual advances or refusing to comply with sexual demands, then employer is automatically liable for the supervisor’s sexually harassing behavior.
Although the Supreme Court in Ellerth and Faragher distinguished between cases based on whether the supervisor took a tangible employment action against the victim and those cases in which no tangible employment action was taken, the Supreme Court’s use of a tangible employment action as the basis for distinguishing between the different types of supervisor sexual harassment is consistent with the theory of quid pro quo harassment because, as observed by the Chamberlain court, “[i]t is the essence of quid prod quo harassment that the employee was subjected to unwelcome sexual advances by a supervisor and her reaction to these advances affected tangible aspects” of the victim’s employment. A recent decision by the First Circuit, Tang v. Citizens Bank, N.A., 821 F.3d 206 (1st Cir. 2016), illustrates that the label quid pro quo harassment remains relevant in illustrating the different types of sexual harassment and the impact quid pro quo harassment has on employer liability.
Employee Claims She Was Fired For Not Responding to Sexual Advances
In that case, Xiaoyan Tang (Tang), who is Chinese, brought claims for sexual harassment and retaliation under Title VII against Citizens Bank, N.A. (Citizens). Tang began working for Citizens in 2007. In May 2010, Tang became a portfolio manager in the Technology Banking Group. In July 2010, Tang met with her supervisor for a semi-annual performance evaluation. During the meeting, the supervisor expressed his views that Asian women are obedient and brought up that he had two live-in Thai house girls at his home. The supervisor said that the Thai house girls did not wear sufficiently revealing swimsuits and asked Tang what type of swimsuit she preferred. The supervisor also asked Tang what type of men she preferred and which dating websites she used. The supervisor also discussed Tang’s immigration status, stating that “he had great control over” her immigration status and future career at Citizens. During the meeting, the supervisor made references to Tang’s buttocks, gestured at her “private area” and made obscene gestures with his hands.
Following this meeting, Tang tried to avoid interacting with her supervisor. Tang testified that although the supervisor never directly propositioned her, he “made it very clear” that he wanted a relationship with her. On various occasions when Tang encountered the supervisor in the office, the supervisor would bring up his live-in Thai house girls and their swimsuit attire. The supervisor also offered to teach her golf, leered at her, and repeatedly stated that he thought Asian women were obedient. Tang claimed that the supervisor’s attitude toward her drastically changed once he recognized that she was not responding to his sexual advances. In January 2011, the supervisor gave Tang a negative performance evaluation. In February 2011, the supervisor gave Tang a performance improvement plan. When discussing the performance improvement plan with her, the supervisor told Tang to “shut her mouth” and she did “not have any rights.” In another meeting that month, the supervisor interrogated Tang about her relationship with a bank customer. Tang alleged that the supervisor “waved his arms” as if to beat her and threatened to “kick her out of the bank” if she did not disclose her relationship with the customer.
In February 2011, Tang made a complaint to the human resources hotline about the supervisor’s behavior. In March 2011, a human resources representative issued an investigation summary finding that Tang’s “allegations were unsubstantiated.” In May 2011, Tang received her final written warning from her supervisor stating that she failed to show improvement since her initial performance improvement plan. In June 2011, Citizens fired Tang for allegedly making a “material mistake” in violation of her final written warning. The trial court dismissed Tang’s sexual harassment and retaliation claims. On appeal, the First Circuit reversed the trial court’s ruling and reinstated Tang’s sexual harassment and retaliation claims.
At the outset of its opinion, the First Circuit noted that “[t]here are two primary types of sex-based discrimination” claims: quid pro quo sexual harassment and hostile work environment sexual harassment. Because Tang claimed that she was terminated for not responding to the supervisor’s romantic and sexual advances, the appellate court explained that evidence showing the supervisor “punished Tang for rebuffing him [was] relevant to her sexual harassment claim.” The appellate court rejected the trial court’s conclusion that Tang could not establish the supervisor’s behavior was based on sex because the supervisor never touched Tang or directly propositioned Tang. The appellate court found that Tang could demonstrate that the supervisor’s behavior was based on sex because his behavior “stemmed from [Tang] having rebuffed his advances.” “[W]hen harassment is motivated by a failed attempt to establish a romantic relationship,” the appellate court reasoned, “the victim’s sex is inextricably linked to the harasser’s decision to harass.” The appellate court also found that, based on evidence showing the supervisor continually stared at Tang, asked about Tang’s personal relationships, discussed his Thai girls and their swimwear choices, and physically approaching her and making obscene gestures, a reasonable jury could determined that the supervisor’s conduct was sufficiently severe or pervasive to create a hostile work environment.
Legal Significance Of Showing Supervisor Punished Victim
The First Circuit’s decision in Tang illustrates that although the Supreme Court has abandoned the commonly used category of quid pro quo sexual harassment, the label of quid pro quo harassment remains relevant when describing the particular type of supervisor harassment at issue and analyzing employer liability for supervisor sexual harassment. As the Tang court pointed out, a sexual harassment victim’s contention that she discharged as punishment for “rebuffing” the supervisor’s sexual advances or sexual demands is “relevant” to her sexual harassment claim.
Under the framework established by the Supreme Court in Ellerth and Faragher, when a sexual harassment victim, such as Tang, proves that a supervisor punished her for rejecting his sexual advances or sexual demands by subjecting her to a tangible employment action, such as termination, the employer is automatically liable for the supervisor’s sexually harassing behavior. This means that the employer is liable for the sexual harassment even if the employer can prove that: (1) it had an effective policy prohibiting sexual harassment; (2) it provided sexual harassment training to managers and supervisors; and (3) it took prompt corrective action to prevent the sexual harassment from continuing against the victim after receiving notice of the harassment. This also means that the employer is liable for the sexual harassment even if the victim never made a complaint about the harassment, including a complaint in compliance with the employer’s procedure for reporting sexual harassment in the workplace.
Consult Ocala Based Sexual Harassment Lawyers
Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience representing employees who have been the victim of quid pro quo sexual harassment and other types of sexual harassment in the workplace. If you have been the victim of sexual harassment or punished for rejecting a supervisor’s sexual advances, 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.
