One of the most frequently litigated issues in cases alleging sexual harassment, is whether the employer should be held liable for a supervisor’s offending conduct.  To a large extent, this determination will depend on whether the complaining employee has suffered a “tangible employment action.”  In a recent Fifth Circuit Court of Appeals case, Williams v. Barnhill’s Buffet Inc., the plaintiff alleged that her immediate supervisor made numerous sexual comments and advances towards her during her employment, and that he retaliated against her for rejecting his advances by assigning her to “bad sections” of the restaurant where she would earn less in tips, and by requiring her to wash the wall where servers dump food.

The plaintiff ultimately resigned from her job and, when asked why she was quitting, she told the employer’s general manager, for the first time, about her allegations of harassment against the supervisor.  The employer immediately suspended the supervisor and, following its investigation of the allegations, terminated the supervisor for misconduct involving the company’s anti-harassment and security policies.

Following her resignation, the employee filed a charge of sexual harassment, constructive discharge, and retaliation with the EEOC and filed suit against her employer under Title VII.  The Fifth Circuit found that her assignment to the “bad sections” of the restaurant and requiring her to wash the wall where servers dumped food did not constitute a “tangible employment action” because these actions were not “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.”  The court further found that “an employee who resigns without affording the employer a reasonable opportunity to address her concerns has not been constructively discharged.”

The Fifth Circuit also found that the employer met the requirements of the Ellerth/Faragher affirmative defense to claims of supervisor harassment.  This defense requires an employer to establish “(a) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.”  The court found that the employer satisfied both prongs of the affirmative defense because the company regularly conducted training for its employees on its anti-harassment policy, took prompt remedial action after learning of the plaintiff’s allegations of misconduct, and because the plaintiff did not report her allegations of her supervisor’s misconduct to any manager or corporate representative until after she had resigned.  Although the plaintiff had told two co-workers of her allegations, the Fifth Circuit held that “these informal complaints . . . were insufficient to put [her employer] on notice of the need to address [her supervisor’s] behavior.”

This case underscores the importance of having a well-drafted anti-harassment policy and proactive training program implemented in the workplace.  Employers should ensure that their reporting procedures are clear and that they follow through with prompt investigations and appropriate remedial action.  In the absence of such clear preventative and remedial measures, employers will be held liable for supervisors’ harassing conduct.