Federal law prohibits harassment of employees based on protected traits. This includes (1) “hostile work environment” harassment in which employees are subjected to unwelcome comments or actions – or both – on the basis of, for example, their sex, race, or religion; and (2) cases in which the alleged harassment is coupled with a tangible employment action, such as where a supervisor demands sexual interactions in order for an employee to be promoted, sometimes called “quid pro quo” harassment. High profile sexual harassment allegations have become increasingly common in recent years, giving rise to, among other things, examination of the prevalence of improper conduct across numerous industries as well as questions regarding whether such claims should be subject to arbitration. Atlanta employment lawyer Justin Scott has handled a variety of these matters and secured a number successful results for clients.

Hostile Work Environment

Generally, to establish a claim for hostile work environment harassment, the plaintiff must show that she was subjected to unwelcome harassment that was based on protected trait (such as, race, sex, religion, disability), and that the harassment was sufficiently severe or pervasive to form a hostile work environment, evaluated through the lens of an reasonable person given the circumstances. In terms of demonstrating that the hostile work environment was severe or pervasive, the employee must show that the conduct at issue was both objectively and subjectively unreasonable – in other words, the employee has to demonstrate that a reasonable person would find the environment abusive or hostile and that she personally found it to be abusive or hostile. Courts look at a number of factors to make this determination, including:

  • the frequency of the conduct
  • the severity of the conduct
  • whether the conduct was physically threatening or humiliating
  • whether the conduct unreasonably interfered with the employee’s work performance

Under the United States Supreme Court cases in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), when there is no tangible employment action taken, a company may seek to avoid liability for a hostile work environment by demonstrating that (1) the company exercised reasonable care to prevent and correct quickly any harassing behavior (such as implementing an anti-harassment policy with a reporting procedure through Human Resources), and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities the employer provided (such as not utilizing the reporting procedure). This defense is not available to employers if there is a tangible employment action, such as a termination or demotion. Drawing upon more than a decade of experience, Atlanta employment lawyer Justin Scott understands well the nuances of these issues and is available to help clients navigate hostile work environment sexual harassment claims.

Tangible Employment Action or Quid Pro Quo

In terms of harassment caselaw, a tangible employment action generally refers to a “significant change in employment status,” such as a hiring, termination, failure to promote, material reassignment, or change in compensation. When supervisory harassment results in a tangible employment action, employers may not fall back on the Faragher/Ellerth affirmative defense. The prototypical “quid pro quo” harassment scenario concerning a tangible employment action is when a manager demands that an employee submit to sexual advances in order to obtain or keep a position.

Courts have declined to apply the “tangible employment action” term to employment decisions that may be less impactful, such as schedule changes or additional assignments. However, each of these actions must be viewed in the greater context of the employment relationship and its real impact on the employee at issue. An important consideration in this analysis is whether the employment action carries with it direct economic harm to the employee, i.e., will the employee make less or lose eligibility for certain types of compensation. The lack of direct economic harm, however, does not necessarily indicate that a tangible employment action has not occurred.

Note that in some circumstances, a constructive discharge – when an employee reasonably feels compelled to resign because of harassment he is experiencing – may constitute a tangible employment action such that an employer cannot establish an affirmative defense if the underlying harassment emanates from the individual’s supervisor, as opposed to mere co-workers. Constructive discharge is still actionable in the latter scenario except that an employer may assert a Faragher/Ellerth affirmative defense to a constructive discharge claim resulting from non-supervisory harassment.

Contact Radford Scott LLP at (678) 780-4880 for assistance with discrimination and/or retaliation issues, or contact the firm online here.

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