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Coerced Sexual Acts With Supervisor Constitute “Tangible Employment Actions” Under Title VII Subjecting Employers to Vicarious Liability

Volume 2, Issue 12
September 16, 2003

In a case involving a secretary at the California Institute of Technology who alleged she was coerced into performing numerous unwanted sexual acts with her supervisor, the Ninth Circuit Court expanded the definition of a "tangible employment action", i.e., conduct by a supervisor that, if proven, imposes automatic liability on an employer under Title VII of the Civil Rights Act of 1964.

Now, in addition to discharge, demotion, or undesirable reassignment, which are all acts explicitly recognized by the United States Supreme Court as constituting "tangible employment action", employers within the jurisdiction of the Ninth Circuit Court can face vicarious liability if its supervisors obtain sexual favors from an employee by conditioning, directly or indirectly, the employee's continued employment on his or her participation in sexual acts. The expansion of the type of conduct that can constitute a tangible employment action is very problematic for employers because the affirmative defense to employer liability under Title VII, which was developed by the Supreme Court in its Faragher and Ellerth decisions, is not available when an employee can show that a tangible employment action occurred. Thus, an employer is strictly liable for the supervisor's conduct with only a few defenses to the imposition of punitive damages.

Luckily for the California Institute of Technology, the Ninth Circuit Court concluded that the secretary had not presented any evidence that would cause a reasonable woman in her position to believe that her supervisor conditioned, directly or indirectly, her job security upon giving into his requests for sex. However, the Court's suggestion that an "indirect" connection between a supervisor's requests for sexual favors and an employee's continued employment can support a claim will likely to embolden would-be plaintiffs to claim sex discrimination, particularly those who have had a voluntary romantic relationship with a supervisor or manager that have turned sour.

This case underscores the need for thorough and ongoing anti-harassment training for all levels of management and the employee workforce. It also requires employers to consider or review the need for fraternization and dating policies that preclude romantic relationships between supervisors and subordinates, as well as between coworkers in other types of "power-differentiated" work relationships, which are work relationships in which one employee supervises or manages another employee, or is in a position to make or influence decisions concerning another employee's terms, conditions or privileges of employment.

Holly D. v. California Inst. of Tech., 339 F.3d 1158 (9th Cir. 2003)

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