The elements where there is a tangible employment
action are:
1. Membership in a protected group:
established by a statement of gender. The complaining employee may be of the same gender as the alleged harasser(s);
2. Sex based:
the conduct need not be sexual in nature, but must be “because of sex;”
3. The tangible employment action:
(see above);
4. The supervisor placed sexual demands on employee:
evidence of direct or express sexual demands is not required, but rather, courts have permitted a “broad array” of evidence to satisfy this element
; and
5. A nexus between tangible action and the employee’s acceptance or rejection of alleged harassment:
evidence relevant to a determination of the nexus includes the temporal relationship of the sexual demand and acceptance or rejection and the employment action, comparative evidence of how employees of the opposite gender were treated and evidence of the alleged harasser’s involvement in the adverse employment decision.
Following
Faragher and
Ellerth, when an employee can prove these elements, the employer is
vicariously liable per se and is not entitled to an affirmative
defense.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
