License to Harass: Holding Defendants Accountable for Retaining Recidivist Harassers

Harassment victims who suffer a "tangible employment action," which the Supreme Court defines as a "significant change in employment status such as hiring, firing, failure to promote, reassignment, or a decision causing a significant change in benefits," enjoy unfettered recourse when they sue their employers. However, victims who do not endure what a court will deem a "tangible employment action" will have their prima facie case of harassment then rendered vulnerable to the interposition of an affirmative defense by a defendant-employer, who will escape liability if it can show "(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." In a previous article, I discussed a phenomenon in the law whereby victims of sexual harassment who fail to report it, but who submit to the advances of their harassers actually fare better under the law than do similarly-situated victims who passively resist the advances, because a submission predicated on the retention or improvement of one's professional status quo has been deemed a tangible employment action by two courts of appeals. This article deals with the availability and application of the Faragher/Ellerth defense where a victim, rather than voluntarily engaging in relations with her harasser, is subjected to a one-time incident that rises to the level of being actionable, like a sexual assault or rape. Although the Supreme Court has "approve[d]" the determination of a circuit court that an instance of sexual assault "did not preclude the employer from asserting the Ellerth/ Faragher affirmative defense" where it was not promptly reported, the Court has not voiced an opinion on the issue of whether a single incident of sexual harassment can ever serve as a tangible employment action. The Eighth Circuit has held that even where a victim reports a single incident of abuse immediately, an employer may be insulated from liability where it acts immediately to rectify the problem. It is shocking to realize that in many parts of this country, a victim who acquiesces to the overtures of her sexually harassing supervisor and fails to report the harassment will be permitted by the law to recover damages from her unknowing employer, but in many other parts of the country, a victim can be assaulted or raped by her supervisor, report the abuse, and be denied damages in her ensuing lawsuit where the employer took preventative and prompt corrective actions. Treating a violent rape as a tangible employment action would obviate the recurrence of these disparate legal outcomes, but this theory has not fared well in the courts. Another solution would evaluate the employer’s affirmative defense by expanding the inquiry into prior harassing acts of the alleged supervisor-harasser, who more often than not has harassed before. The inquiry would also examine the prior preventative and corrective action the employer took with respect to the harasser, and the employer’s knowledge of the risk of harm to plaintiff. A closer look at the way in which traditional principles of agency, liability, and consent operate outside the context of employment leads quickly to the conclusion that recourse for a harassment victim needs to be predicated on the choices that she, herself, was able to make and the way in which she conducted herself.