In 1998, the U.S. Supreme Court in Burlington Industries v. Ellerth looked at supervisor harassment. Supervisor harassment is distinct from harassment from co-workers. A supervisor has the ability to affect a significant change in an employee’s employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits. These are examples of tangible adverse employment actions. Our Third Circuit in Tucker v. Merck, has held that a tangible adverse employment action is an action by an employer that is “serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.”
The Ellerth case involved unfulfilled threats from a senior management official named Ted Slowik. In the summer of 1993, while on a business trip, Slowik invited the Plaintiff Kimberly Ellerth to the hotel lounge, and Ellerth felt compelled to accept the invitation because Slowik was her boss. Slowik made some remarks about her breasts. When Ellerth did not encourage such comments, he told her to “loosen up” and warned, “you know, Kim, I could make your life very hard or very easy at Burlington.”
Normally, in discrimination or harassment situations there would be adverse action taken against the employee along with the threats, that is, there would be fulfilled threats, but in Ellerth, there was no adverse employment action taken though by the official. In fact, the victim-employee received a promotion that was recommended by the harassing official. She then quit after a couple months, saying there was a hostile work environment.
In Ellerth, the U.S. Supreme Court held that “an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
As shown by the Supreme Court decision in Ellerth, it is important whether it’s a supervisor doing the harassing behavior. It’s also very important whether there is a tangible adverse action taken against the employee by the employer. In fact, the two affirmative defenses are not available when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.”