Court: No defense for quid pro quo harassment

With sexual harassment in the news, a ruling handed down last month by the 2nd Circuit Court of Appeals should worry employers used to avoiding liability by showing that they take reasonable steps to prevent harassment.

Recent case: FedEx employee Lisa came into work on a Sunday after her boss asked her to meet him there. Then, telling her, “You take care of me, I’ll take care of you,” he raped her. He sexually assaulted her again on a subsequent Sunday.

Lisa claimed this constituted quid pro quo sexual harassment (as well as rape) and sued.

The lower court said FedEx could use the so-called Faragher-Ellerth defense, named after two 1998 Supreme Court decisions—Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth. Those cases established that an employer can avoid liability for sexual harassment by showing it took reasonable steps to prevent and correct the problem, and that the victim failed to take advantage of opportunities to remedy harassment, for example, by not reporting it. Because Lisa didn’t report the first attack, the court said she denied FedEx the chance to prevent a second assault.

FedEx also argued there had been no quid pro quo because the supervisor’s statement was not specific enough to constitute a threat to her job if she didn’t submit. She appealed.

The 2nd Circuit Court of Appeals reversed and remanded the case for a trial. The court wrote, “a reasonable jury could conclude that submitted to sexual harassment because of a threat of discipline or the promise of ‘continued employment.’” It said that would qualify as quid pro quo harassment. The court said the Faragher-Ellerth defense doesn’t apply when the harasser is the victim’s supervisor under these circumstances. (Kennedy v. Federal Express, 2nd Cir., 2017)

Advice: Make sure every supervisor understands that your organization does not tolerate sexual harassment of subordinates. Your policy should call for immediate termination of any supervisor who sexually harasses a subordinate.