As you may know, I am a die-hard management-side lawyer. I usually cheer judicial opinions that uphold the rights of employers, which I feel are too often constrained by well-meaning but easily-abused employment laws. But every now and then, even my management-side soul can be a little surprised by a judge’s pro-employer ruling. This was the situation in the recent case of Dawson v. Housing Authority of Baltimore City.
In that case, the plaintiff was an employee of the Housing Authority, who alleged that she had been sexually harassed by her supervisor. Specifically, she claimed that he made sexually explicit comments to her on a near-daily basis, and that when she refused his advances, he forced her to resign a second job that she held with another employer and threatened the loss of her recent promotion with the Housing Authority.
The employee sued both the Housing Authority and her supervisor, claiming, among other things, that she had been subjected to quid pro quo (i.e. “this for that”) sexual harassment. In order to bring a claim for quid pro quo harassment, the employee must establish the following:
1) The employee belongs to a protected group.
2) The employee was subject to unwelcome sexual harassment.
3) The harassment complained of was based upon sex.
4) The employee’s reaction to the harassment affected tangible aspects of the employee’s compensation, terms, conditions, or privileges of employment.
5) The employer knew or should have known of the harassment and took no effective remedial action.
In this case, the judge found that the employee failed to meet the fourth element. Although the employee alleged that her supervisor threatened to fire her if she did not quit her second job, the judge found that she needed to show that she suffered from an actual job action – and, according to Supreme Court authority, unfulfilled threats are the province of a hostile work environment claim (which she also asserted), and not a quid pro quo claim. After all, the threat to fire her was never carried out.
But didn’t the employee suffer an actual job action – the loss of her second job? That seems pretty tangible. According to the judge, however, there is no authority for the proposition “that a quid pro quo claim can be established by a change in employment status at another workplace.” Well, perhaps no court has previously found this to be the case (or even considered the question), and I understand this judge’s interpretation that this particular element should be limited to the immediate workplace in question – but the other side could have a decent argument as well. The employee clearly suffered an economic impact – the loss of the second job, which was (allegedly) caused by the actions of the supervisor. And the impact in other workplaces has been found to create Title VII liability in other circumstances – for example, the EEOC says that providing a false or negative employment reference can violate Title VII. So while I can see why the judge ruled this way, I could also see an argument that the employee’s loss of a second job might be a tangible job action.
I imagine this issue may come up again, with the invigorated attention on harassment claims in connection with the #MeToo movement. It will be interesting to see if other judges agree with this one.