The first
claim of harassment to be recognized by the U.S. Supreme Court involved sexual harassment. In
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Court
held that a
claim of sexual harassment may be
actionable even if the harassment does not
cause a direct economic
injury.
Since 1986,
claims of harassment have been recognized with respect to other protected classes. Circuit
courts have expanded harassment to the following protected bases, applying the same legal standard as applies to sexual harassment
claims:
1. Age
see, e.g., Burns v. AAF-McQuay, Inc., 166 F.3d 292 (4th Cir. 1999);
2. Race or national origin
see e.g., Celestine v. Citgo, 266 F.3d 343 (5th Cir. 2001);
3. Disability
see, e.g., Flowers v. Southern Reg’l Physician Servs., Inc., 247 F.3d 229 (5th Cir. 2001); and
4. Religion
see, e.g., Daron v. Premdor Entry Sys., 172 F.3d 48, 1998 U.S. App. LEXIS 31017 (6th Cir. Dec. 3, 1998).
Historically, harassment was divided into two basic categories:
1. Quid Pro Quo: Where a supervisor relies on actual or apparent authority to extort sexual favors from an employee and submission to those favors is an implicit or explicit condition of an individual’s employment or the basis for an employment decision.” See Barnes v. Costile, 561 F.2d 983 (D.C. Cir. 1977)
2. Hostile Environment: Where an individual has been required to endure a work environment that substantially affects a term or condition of the individual’s employment thought not directly causing economic harm. Meritor, 477 U.S. 57 (1986)
In 1998, the Supreme Court decided
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), which more clearly define the analysis of harassment
claims and provide an affirmative
defense to
claims of environmental harassment. The Court abandoned the
quid pro quo framework and introduced an analysis based on whether a (a) “tangible employment
action” occurred or (b) the harassment is environmental.
1. Tangible Employment Action. The Court defined tangible employment action as a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Normally, a tangible employment action requires action of a supervisor or management employee. Direct economic harm is an important indicator, but courts have found tangible action in its absence.
2. Environmental Harassment: The Court did not redefine environmental harassment, but reaffirmed environmental harassment to be offensive conduct (both objectively and subjectively) based on sex so severe or pervasive as to alter the conditions of the employee’s employment and create an abusive working environment.
Since
Faragher and
Ellerth, the
quid pro quo and hostile environment distinctions have been essentially abandoned and replaced with analysis of tangible employment
action versus purely hostile environment harassment.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
