?Takeaway: To take advantage of the Faragher/Ellerth affirmative defense against sexual harassment, an employer must prove both that it acted reasonably to prevent and correct sexual harassment and that the employee unreasonably failed to act by not using the provided complaint opportunities.
?An employee did not experience an adverse employment action following her complaint of sexual harassment, the federal district court of Colorado held, where the employee took a voluntary leave of absence during the employer’s investigation. The employee also did not request any accommodation or modification to her work environment and did not return to work despite the employer’s repeated assurances that she would be reinstated.
The employee had alleged sexual harassment due to a hostile work environment, sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Colorado Anti-Discrimination Act.
The employer, a full-service home remodeling company operating in the Western United States, had a harassment-free workplace policy that provided several ways to report alleged sexual harassment, including by contacting the company’s HR department, president or legal counsel, or by using an anonymous, confidential hotline.
The female employee worked as a sales representative and claimed that, almost immediately after beginning work for the employer, her male manager subjected her to offensive, inappropriate and unwelcome sexual conduct. This included showing the employee and three other female trainees photographs on his work computer that he had taken as a part-time photographer, many of which were of scantily clad young women.
Another time, during a sales team meeting, the manager suggested that the employee get sales tips from her “sales guru” husband by bribing him with sex. Then, the manager called the employee at home, purportedly to ask for a restaurant recommendation. The call lasted 90 minutes, during which time the manager asked probing questions about the employee’s personal life, including her age, race and family.
The employee sent an e-mail to the company president complaining about the manager’s behavior. The company responded to the employee and started an investigation before the end of the day. Later, the employee sent another e-mail saying she was uncomfortable continuing to work with the manager and would be taking a leave of absence during the investigation. The company assured her that her job remained open and asked if there were any accommodations that she felt would allow her to return to work; however, the employee offered no suggestions or requests.
Following its investigation, the employer gave the manager a corrective action, which was one step below termination, ordering him to complete a sexual harassment course and prohibiting him from sharing photographs or engaging in other harassing behavior. The employee did not return to work, saying that she felt forced to quit since returning required that she still work with the manager.
“Given the fairly steady barrage of gender-specific, sexually-charged conduct that [the] plaintiff is alleged to have been subjected to over a relatively short period of time,” the court said that a rational factfinder could conclude that the harassment was so pervasive that the plaintiff’s workplace was “permeated with discriminatory intimidation, ridicule, and insult.” Because there also were disputed issues of fact as to whether the employer had taken reasonable care to correct those claims, the court denied summary judgment on the sexual harassment claim.
The court, however, granted summary judgment on the sex discrimination and retaliation claims. To prove sex discrimination or retaliation a plaintiff must show that they suffered an adverse employment action—such as termination or a demotion—or a “material adverse employment action,” one that would discourage an employee from exercising their rights, such as being excluded from meetings or given fewer or less favorable assignments.
Because the record showed that the employee’s leave of absence was “entirely voluntary” and that she had simply never returned, the court ruled that the employee had not suffered an adverse employment action or a material adverse employment action.
Clayton v. Dreamstyle Remodeling of Colorado LLC, D. Colo., No. 20-CV-02096 (March 28, 2022).
Robert S. Teachout, SHRM-SCP, works in the Washington, D.C., area and is a legal editor for XpertHR, a service helping HR build successful and purposeful workplaces.